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51 

31 

"ANACONDA  COPPER  MINING  COMPANY 


TO 


GUARANTY  TRUST  COMPANY  OF  NEW  YORK, 

as  Trustee 


SIruHt  Agreement 

Dated  January  2,  1919 


To  Secure  an  Authorized  Issue  of  $50,000,000 
Ten-Year  Secured  Gold  Bonds 


Principal  due  January  1,  1929 
Interest  Payable  July  1  and  January  1 


Th#  Brening  Post  Job  Printing  Office,  Inc.,  156  Fulton  St.,  N.  Y. 


Digitized  by  the  Internet  Archive 
in  2017  with  funding  from 

University  of  Illinois  Urbana-Champaign  Alternates 


https://archive.org/details/anacondacoppermiOOanac 


AgrPPttttfttt,  dated  January  2,  1919,  between  the 
Anaconda  Copper  Mining  Company,  a  corporation  or¬ 
ganized  and  existing  under  the  Laws  of  the  State  of 
Montana  (hereinafter  called  the  “Company”),  party  of 
the  first  part,  and  the  Guaranty  Trust  Company  of 
New  York,  a  corporation  organized  and  existing  under 
the  Laws  of  the  State  of  New  York  (hereinafter  called 
the  “Trustee”),  party  of  the  second  part. 

Whereas,  the  Company  desires  to  provide  funds  for 
its  corporate  purposes,  and,  to  that  end,  has  duly  deter¬ 
mined  to  issue  its  Ten-Year  Secured  Gold  Bonds  (here¬ 
inafter  referred  to  as  the  “Bonds”),  of  an  aggregate 
principal  amount  not  to  exceed  Fifty  Million  Dollars, 
to  be  dated  January  1,  1919,  to  mature  on  January  1, 
1929,  to  be  issued  in  series,  from  time  to  time,  to  be 
secured  by  the  pledge  of  the  property  hereinafter  de¬ 
scribed,  to  bear  interest  payable  semi-annually  on  July  1 
and  January  1  in  each  year,  at  such  rate  as  to  each  par¬ 
ticular  series  as  may  be  determined  by  the  Company  at 
the  time  of  authorizing  the  issue  thereof,  the  Bonds  of 
each  series  to  be  signed  in  the  name  of  the  Company  by 
its  President  or  Vice  President,  impressed  with  its  cor¬ 
porate  seal,  attested  by  its  Secretary  or  Assistant  Secre¬ 
tary,  to  be  authenticated  by  the  certificate  of  the  Trustee 
indorsed  thereon,  and,  except  as  otherwise  specifically 
provided  as  to  some  or  all  of  the  Bonds  of  any  particular 
series,  to  have  interest  coupons  attached,  executed  with 
the  facsimile  signature  of  its  Treasurer,  which  Bonds, 
interest  coupons  and  Trustee’s  certificate  are  to  be  sub¬ 
stantially  in  the  following  forms,  respectively,  with  such 
modifications  thereof  and  additions  thereto,  as  to  any 
particular  series,  as  may  be  appropriate  or  necessary  by 
reason  of  the  terms  under  which  the  Bonds  of  such  series 
are  issued ; 


2 


[form  of  bond.] 

Series  Series 

No.  No. 


UNITED  STATES  OE  AMERICA 
State  of  Montana 

ANACONDA  COPPER  MINING  COMPANY 
Ten-Year  Secured  Gold  Bond 
Per  Cent. 

The  Anaconda  Copper  Mining  Company  (herein 
after  called  the  “Company”),  for  value  received,  promises 
to  pay  to  Bearer  or,  if  this  Bond  be  registered,  to  the 
registered  holder  hereof,  on  January  1,  1929, 

Dollars  in  gold  coin  of  the  United  States 
of  America  of  or  equal  to  the  present  standard  of  weight 
and  fineness,  and  to  pay  interest  thereon  from  the  date 
hereof,  in  like  gold  coin,  at  the  rate  of  per  cent, 

per  annum,  semi-annually  on  July  1  and  January  1  in 
each  year.  Until  the  maturity  of  this  Bond,  such  interest 
shall  be  paid  only  upon  presentation  and  surrender  of 
the  attached  interest  coupons  as  they  severally  mature. 

Both  principal  and  interest  of  this  Bond  are  payable 
at 

This  Bond  is  one  of  a  duly  authorized  issue  of  Bonds 
of  the  Company  known  as  its  Ten-Year  Secured  Gold 
Bonds,  not  to  exceed  the  aggregate  principal  amount  of 
150,000,000  at  any  one  time  outstanding,  all  issued  and 
to  be  issued  in  series,  from  time  to  time,  under,  and  all 
equally  secured  by,  a  certain  Trust  Agreement,  dated 
January  2,  1919,  executed  by  the  Company  to  the  Guar¬ 
anty  Trust  Company  of  New  York,  as  Trustee,  to  which 


3 


Trust  Agreement  reference  is  hereby  made  for  a  descrip¬ 
tion  of  the  security,  the  terms  under  which  the  said 
Bonds  are  issued  and  the  rights  and  obligations  of  the 
Company  and  of  the  Trustee  and  of  the  respective  holders 
of  the  said  Bonds  with  respect  to  such  security. 

In  the  event  of  default  by  the  Company  as  defined  in 
the  said  Trust  Agreement,  the  principal  of  all  the  Bonds 
issued  and  outstanding  under  the  said  Trust  Agreement 
may  be  declared,  or  may  become,  due  and  payable  before 
maturity  in  the  manner  and  with  the  effect  therein 
provided. 

This  Bond  shall  pass  by  delivery  until  registered  as  to 
principal  in  the  owner’s  name  on  boohs  kept  for  that 
purpose  at  the  office  of  the  Trustee,  such  registration 
being  noted  hereon.  After  such  registration,  .no  further 
transfer  hereof  shall  be  valid  unless  made  on  the  said 
books  by  the  registered  holder  in  person  or  by  duly  auth¬ 
orized  attorney  and  similarly  noted  hereon;  but  this 
Bond  may  be  discharged  from  registry  by  being  in  like 
manner  transferred  to  bearer,  and  thereupon  transfer- 
ability  by  delivery  shall  be  restored.  This  Bond  shall 
continue  to  be  subject  to  successive  registrations  and 
transfers  to  bearer,  at  the  option  of  the  holder.  No  regis¬ 
tration,  however,  shall  affect  the  negotiability  of  the  at¬ 
tached  interest  coupons,  which  shall  continue  to  be  pay¬ 
able  to  bearer  and  transferable  by  delivery  merely. 

No  recourse  shall  be  had  for  the  payment  of  any  part 
of  either  principal  or  interest  of  this  Bond  or  for  any 
claim  based  hereon  or  thereon,  or  otherwise  in  any  man¬ 
ner  in  respect  hereof  or  in  respect  of  the  said  Trust 
Agreement,  to  or  against  any  stockholder,  officer  or  direc¬ 
tor,  past,  present  or  future,  of  the  Company,  by  virtue 
of  any  statute  or  by  the  enforcement  of  any  assessment  or 
penalty,  or  in  any  manner. 


4 


This  Bond  shall  not  become  obligatory  or  valid  for 
any  purpose  until  the  certificate  indorsed  hereon  shall 
have  been  signed  by  the  Trustee. 


In  witness  whereof,  the  Company  has  caused  this 
Bond  to  be  executed  in  its  corporate  name  by  its  Presi¬ 
dent  or  Vice-President  and  impressed  with  its  corporate 
seal,  attested  by  its  Secretary  or  Assistant  Secretary, 
and  the  attached  interest  coupons  be  executed  with  the 
facsimile  signature  of  its  Treasurer,  as  of  January  1, 
1919. 


Anaconda  Copper  Mining  Company, 

By 


President. 


Attest : 


No. 


Secretary. 

[form  of  interest  coupon.] 

$ 


On  ,  19  ,  the  Anaconda 

Copper  Mining  Company  will  pay  to  Bearer  at 

,  Dollars  in  gold  coin  of 

the  United  States  of  America,  being  six  months’  interest 
then  due  on  its  Ten-Year  Secured  Gold  Bond,  Series 
. ,  No . 


Treasurer. 

[form  of  trustee’s  certificate.] 

This  is  one  of  the  Bonds,  of  the  series  designated 
therein,  described  in  the  within  mentioned  Trust  Agree¬ 
ment. 

Guaranty  Trust  Company  of  New  York, 

as  Trustee, 


By 


5 


And  Whereas  all  things  necessary  to  make  the  Bonds, 
when  authenticated  by  the  Trustee  and  issued  as  in  this 
Agreement  provided,  valid,  binding  and  legal  obligations 
of  the  Company,  and  to  constitute  this  Agreement  a 
valid  instrument  for  the  security  thereof,  have  been  done 
and  performed,  and  the  execution  and  delivery  of  this 
Agreement  and  the  execution  of  the  Bonds,  subject  to  the 
terms  hereof,  have  in  all  respects  been  duly  authorized; 

Now,  THEREFORE,  THIS  AGREEMENT  WITNESSETH: 
That,  in  consideration  of  the  premises  and  of  the  pur¬ 
chase  and  acceptance  of  the  Bonds  by  those  who  shall 
hold  the  same  from  time  to  time,  and  of  the  sum  of 
One  Dollar  to  the  Company  duly  paid  by  the  Trustee, 
the  receipt  whereof  is  hereby  acknowledged,  and  to  secure 
the  payment  of  the  principal  and  interest  of  all  the 
Bonds  at  any  time  issued  and  outstanding  hereunder, 
according  to  their  tenor  and  effect,  and  to  secure  the 
faithful  observance  and  performance  of  all  the  covenants 
and  conditions  herein  contained,  the  Company  has  as¬ 
signed,  conveyed,  pledged,  transferred  and  set  over,  and, 
by  these  presents,  does  assign,  convey,  pledge,  transfer 
and  set  over  unto  the  Trustee,  its  successors  and  assigns 
forever,  all  and  singular  the  following  described 
shares  of  corporate  stock  now  owned  by  the  Company 
(which,  together  with  any  other  stock,  bonds  or  other 
securities  which  may  at  any  time  be  held  by  the  Trustee 
hereunder,  are  hereinafter  sometimes  referred  to,  col¬ 
lectively,  as  the  “Trust  Property”)  : 

119,993  shares  of  the  capital  stock  of  the  Inter¬ 
national  Smelting  Company,  a  corporation  or¬ 
ganized  and  existing  under  the  laws  of  the  State 
of  Montana,  of  the  par  value  of  flOO  each,  being 
the  entire  issued  and  outstanding  capital  stock  of 
the  said  corporation,  except  directors’  qualifying 
shares ; 


6 


3,195  shares  of  the  capital  stock  of  the  Tooele 
Valley  Railway  Company,  a  corporation  organized 
and  existing  under  the  laws  of  the  State  of  Utah, 
of  the  par  value  of  $100  each,  being  the  entire 
issued  and  outstanding  capital  stock  of  the  said 
corporation,  except  directors’  qualifying  shares; 

7,485  shares  of  the  capital  stock  of  the  Inter¬ 
national  Lead  Refining  Company,  a  corporation 
organized  and  existing  under  the  laws  of  the  State 
of  Indiana,  of  the  par  value  of  $100  each,  being  the 
entire  authorized,  issued  and  outstanding  capital 
stock  of  the  said  corporation,  except  directors’ 
qualifying  shares; 

20,000  shares  of  the  preferred  capital  stock  of 
the  Raritan  Copper  Works,  a  corporation  or¬ 
ganized  and  existing  under  the  laws  of  the  State 
of  New  Jersey,  of  the  par  value  of  $25  each,  being 
the  entire  authorized,  issued  and  outstanding  pre¬ 
ferred  capital  stock  of  the  said  corporation,  and 
39,993  shares  of  the  common  capital  stock  of 
the  said  Raritan  Copper  Works,  of  the  par  value 
of  $25  each,  being  the  entire  authorized,  issued 
and  outstanding  common  capital  stock  of  the  said 
corporation,  except  directors’  qualifying  shares; 

150,000  shares  of  the  capital  stock  of  the  Dia¬ 
mond  Coal  and  Coke  Company,  a  corporation 
organized  and  existing  under  the  laws  of  the  State 
of  Utah,  of  the  par  value  of  $10  each,  being  the 
entire  authorized,  issued  and  outstanding  capital 
stock  of  the  said  corporation ; 

707,192.9096  shares  of  the  capital  stock  of  the 
Andes  Copper  Mining  Company,  a  corporation  or¬ 
ganized  and  existing  under  the  laws  of  the  State 
of  Delaware,  of  the  par  value  of  $25  each,  out  of 
1,228,862.9096  shares  of  the  capital  stock  thereof 
issued  and  outstanding; 

150,000  shares  of  the  capital  stock  of  the  Andes 
Exploration  Company,  a  corporation  organized 
and  existing  under  the  laws  of  the  State  of  Dela¬ 
ware,  of  the  par  value  of  $10  each,  being  the  entire 
authorized,  issued  and  outstanding  capital  stock 
of  the  said  corporation ; 


7 


222,494  shares  of  the  capital  stock  of  the  Andes 
Exploration  Co.,  a  corporation  organized  and 
existing  under  the  laws  of  the  State  of  Maine,  of 
the  par  value  of  $10  each,  being  the  entire  issued 
and  outstanding  capital  stock  of  the  said  corpora¬ 
tion,  except  directors’  qualifying  shares; 

256,370  shares  of  the  capital  stock  of  the  Santi¬ 
ago  Mining  Company,  a  corporation  organized  and 
existing  under  the  laws  of  the  State  of  Delaware, 
of  the  par  value  of  $25  each,  out  of  266,505  shares 
of  the  capital  stock  thereof  issued  and  outstanding, 
and 

10,000  shares  of  the  capital  stock  of  the  Potre- 
rillos  Railway  Company,  a  corporation  organized 
and  existing  under  the  laws  of  the  State  of  Dela¬ 
ware,  of  the  par  value  of  $100  each,  being  the  entire 
authorized,  issued  and  outstanding  capital  stock 
of  the  said  corporation; 

In  trust,  nevertheless,  upon  the  terms  and  conditions 
herein  set  forth,  for  those  who  shall  hold  the  Bonds  and 
the  interest  coupons  pertaining  thereto,  without  prefer¬ 
ence  of  any  of  the  Bonds  over  any  of  the  others  by  reason 
of  the  series  thereof  or  of  priority  in  the  time  of  issue,  sale 
or  negotiation  thereof,  or  otherwise  for  any  cause  what¬ 
ever; 

Provided,  however,  and  these  presents  are  upon  the 
express  condition,  that,  if  the  Company,  its  successors 
or  assigns,  shall  wrell  and  truly  pay  or  cause  to  be  paid 
the  principal  of  the  said  Bonds  and  the  interest  due  or 
to  become  due  thereon,  at  the  times  and  in  the  manner 
mentioned  in  the  Bonds  and  the  interest  coupons  per¬ 
taining  thereto,  respectively,  according  to  the  true  in¬ 
tent  and  meaning  thereof,  and  shall  well  and  truly 
keep,  perform  and  observe  all  the  covenants  and  condi¬ 
tions  in  this  Agreement  expressed  to  be  kept,  performed 
and  observed  by  it,  and  shall  pay  to  the  Trustee  all  sums 


8 


of  money  clue  or  to  become  due  to  it  in  accordance  with 
the  terms  and  provisions  hereof,  then  this  Agreement 
and  the  rights  hereby  granted  shall  cease,  determine  and 
be  void,  and  the  Trustee,  in  such  case,  on  written  demand 
of  the  Company,  shall  cancel  and  satisfy  this  Agreement 
and  shall  deliver  to  or  upon  written  order  of  the  Com¬ 
pany  the  Trust  Property  then  in  its  possession;  other¬ 
wise  to  be  and  remain  in  full  force  and  effect. 

And  it  is  hereby  covenanted  and  agreed,  that  the 
Bonds  are  to  be  issued,  authenticated  and  delivered,  and 
the  Trust  Property  is  to  be  held  by  the  Trustee,  subject 
to  the  following  covenants,  conditions,  uses  and  trusts: 

ARTICLE  FIRST. 

Amount,  Form,  Execution,  Issue  and  Registration 

of  Bonds. 

Section  1.  The  Bonds  to  be  issued  hereunder  shall 
be  known  as  the  Company's  “Ten-Year  Secured  Gold 
Bonds.”  The  aggregate  principal  amount  of  all  the 
Bonds  which  may  be  issued  under  this  Agreement  shall 
never  at  any  one  time  exceed  the  sum  of  Fifty  Million 
Dollars  ($50,000,000). 

Section  2.  The  Bonds  shall  be  issued  in  series,  from 
time  to  time,  in  such  amounts  and  upon  such  terms  as 
the  Company  shall  determine  at  the  time  of  authorizing 
the  issue  thereof.  The  Bonds  of  each  series  shall  be 
designated  by  one  or  more  distinguishing  letters  of  the 
English  alphabet;  shall  be  substantially  in  the  form 
hereinbefore  recited,  with  such  modifications  thereof  and 
additions  thereto  as  may  be  appropriate  or  necessary  by 
reason  of  the  terms  under  which  they  are  issued;  shall 
be  dated  January  1,  1919;  shall  mature  on  January  1, 
1929,  and  shall  be  payable  at  such  place  or  places,  and 


9 


bear  interest  at  such  rate,  payable  semi-annually  on  July 
1  and  January  1  in  each  year,  as  shall  be  determined  by 
the  Company  at  the  time  of  the  authorization  of  the  issue 
thereof. 

At  the  time  of  authorizing  any  series  of  Bonds,  the 
Company  may  direct  that  the  Bonds  of  such  series  shall 
be  issued  in  the  denominations  of  $100,  $500,  $1,000 
and/or  any  multiple  of  $1,000,  and  either  as  coupon 
Bonds  or  as  registered  Bonds  without  coupons,  and  it 
may  also  stipulate  and  agree,  if  it  shall  be  lawful  so  to 
do,  that  the  principal  and  interest  of  such  Bonds  shall 
be  payable  without  deduction  for  any  taxes,  assessments 
or  other  governmental  charges  which  the  Company,  or 
its  paying  agents,  may  be  required  or  authorized  to  pay 
thereon,  or  to  retain  or  deduct  therefrom,  under  any 
present  or  future  law,  except  as  may  be  otherwise  pro¬ 
vided  in  the  said  stipulation  or  agreement.  The  Bonds 
of  any  series  may  also  contain  such  provisions  as  to  the 
exchange  of  Bonds  of  one  denomination  for  Bonds  of 
another  denomination  of  the  same  series,  or  as  to  the 
exchange  of  coupon  Bonds  for  registered  Bonds  without 
coupons  or  of  registered  Bonds  without  coupons  for 
coupon  Bonds,  or  as  to  the  redemption  of  Bonds,  or  as 
to  the  conversion  of  Bonds  into  the  capital  stock  of  the 
Company,  as  the  Company,  with  the  approval  of  the  Trus¬ 
tee,  may  determine  at  the  time  of  authorizing  such  Bonds. 

Bonds  of  any  one  series  shall  be  identical,  except  in 
the  respect  that  they  may  be  of  different  denominations 
and  in  coupon  or  registered  form,  and  except  also,  that,  as 
between  Bonds  of  different  denominations  and  as  between 
coupon  Bonds  and  registered  Bonds  without  coupons, 
there  may  be  such  appropriate  differences,  authorized  or 
permitted  by  this  Agreement,  as  may  be  determined  by 
the  Company  and  approved  by  the  Trustee  at  or  before 
the  creation  of  such  series. 


io 


Section  3.  The  Bonds  shall  be  signed  on  behalf  of 
the  Company  by  its  President  or  Vice-President,  and  im¬ 
pressed  with  its  corporate  seal,  attested  by  its  Secretary 
or  Assistant  Secretary.  Bonds  so  executed  may,  from 
time  to  time,  be  delivered  to  the  Trustee  for  authentica¬ 
tion,  and  the  Trustee  shall  authenticate  and  deliver  the 
same  in  accordance  with  the  provisions  of  Section  5  of 
this  Article  First,  and  not  otherwise. 

In  case  any  of  the  officers  of  the  Company  who  shall 
have  signed  or  sealed  any  of  the  Bonds  shall  cease  to 
be  such  officers  before  the  Bonds  so  signed  or  sealed  shall 
have  been  actually  authenticated  or  issued,  such  Bonds 
may,  nevertheless,  be  adopted  by  the  Company,  and  upon 
the  written  request  of  the  Company,  signed  as  aforesaid, 
shall  be  authenticated  by  the  Trustee  and  may  be  issued 
by  the  Company,  as  though  the  persons  who  had  signed 
or  sealed  such  Bonds  had  not  ceased  to  be  such  officers. 

Section  4.  The  interest  coupons  to  be  attached  to 
the  Bonds  shall  be  substantially  in  the  form  hereinbefore 
recited,  with  such  modifications  thereof  and  additions 
thereto  as  may  be  necessary  or  appropriate  by  reason  of 
the  terms  under  which  the  respective  Bonds  are  issued, 
and  shall  be  executed  with  the  facsimile  signature 
of  the  present  or  any  future  Treasurer  of  the  Company; 
and  the  Company  may  adopt  and  use  for  that  purpose 
the  facsimile  signature  of  such  Treasurer,  notwithstand¬ 
ing  the  fact  that  he  may  have  ceased  to  be  such  Treasurer 
at  the  time  when  such  Bonds  shall  be  actually  authenti¬ 
cated  or  issued. 

Section  5.  Whenever  the  Company  shall  desire  the 
authentication  and  delivery  of  any  series  of  Bonds  here¬ 
under,  the  Company  shall  deliver  to  the  Trustee  (1)  a 
copy  of  a  Resolution  or  Resolutions  of  its  Board  of 


11 


Directors,  certified  by  its  Secretary  or  Assistant  Secre¬ 
tary  under  its  corporate  seal,  authorizing  the  execution 
and  issue  of  a  specified  aggregate  principal  amount  of 
such  Bonds  and  describing  the  terms  thereof  (which  shall 
be  of  a  character  authorized  by  this  Agreement  and  not 
inconsistent  herewith),  and  requesting  the  Trustee  to 
authenticate  the  same,  and,  except  in  the  case  of  the 
$25,000,000,  aggregate  principal  amount,  of  the  Bonds 
of  Series  A,  the  issue  of  which  is  hereinafter  in  Sec¬ 
tion  6  of  this  Article  specifically  provided  for,  (2) 
a  certificate  signed  by  the  President  or  Vice-President 
of  the  Company  and  its  Treasurer  or  Auditor,  certifying 
that  the  earned  surplus  of  the  Company,  calculated  in 
the  manner  hereinafter  in  Section  12  of  Article  Third 
hereof  provided  (including  so  much  thereof  as  may  have 
been  capitalized  by  the  declaration  and  payment  after 
January  1,  1919,  of  stock  dividends),  is  at  least  equal  to 
the  aggregate  principal  amount  of  Bonds  then  outstand¬ 
ing  and  then  to  be  issued ;  and,  upon  the  delivery  by  the 
Company  to  the  Trustee  of  Bonds  of  such  series,  executed 
as  in  this  Agreement  provided  and  in  accordance  with  the 
terms  of  such  Resolution  or  Resolutions  and  in  the 
amounts  therein  specified,  and  upon  the  execution  and 
delivery,  in  accordance  with  the  provisions  of  Article 
Second  hereof,  of  such  supplemental  agreement  or  inden¬ 
ture  (if  any)  as  the  Company  and  the  Trustee  may  deem 
necessary  or  desirable  with  respect  to  such  series,  the 
Trustee  shall  authenticate  and  deliver  the  said  Bonds  to 
or  upon  the  written  order  of  the  Company,  signed  by  its 
President  or  Vice-President  and  its  Secretary  or  Assistant 
Secretary. 

Section  6.  Twenty-five  Million  Dollars  ($25,000,000), 
aggregate  principal  amount,  of  Bonds  of  Series  A,  shall 
forthwith  be  executed  by  the  Company  and  authenticated 


12 


and  delivered  by  the  Trustee  in  accordance  with  the 
terms  hereof.  Bonds  of  Series  A  shall  be  coupon  Bonds 
of  the  denomination  of  $1,000  each,  registrable  as  to  prin¬ 
cipal  only,  bearing  interest  at  the  rate  of  six  per  cent, 
per  annum ;  and  both  principal  and  interest  of  such  Bonds 
shall  be  payable  at  The  National  City  Bank  of  New  York, 
or,  at  the  option  of  the  holder,  at  the  principal  office  of 
the  Trustee,  in  the  Borough  of  Manhattan,  City  and  State 
of  New  York,  without  deduction  for  any  taxes,  assess¬ 
ments  or  other  governmental  charges  which  the  Company, 
the  said  Bank  or  the  Trustee  may  be  required  or  author¬ 
ized  to  pay  thereon,  or  to  retain  or  deduct  therefrom, 
under  any  present  or  future  law  whatever,  except  inheri¬ 
tance  taxes  or  so  much  of  any  Federal  income  taxes  in 
respect  to  income  derived  from  the  interest  on  such  Bonds 
as  shall  be  in  excess  of  two  per  cent,  of  such  interest. 

Section  7.  Only  such  Bonds  as  shall  be  authenticated 
by  a  certificate  substantially  in  the  form  hereinbefore 
recited,  executed  by  the  Trustee,  shall  be  secured  by  this 
Agreement  or  entitled  to  any  right  or  benefit  hereunder. 
Such  authentication  by  the  Trustee  upon  any  Bond  shall 
be  conclusive  evidence  that  the  Bond  so  authenticated  has 
been  duly  issued  hereunder  and  that  the  holder  thereof 
is  entitled  to  the  benefit  of  the  trusts  hereby  created. 
Before  authenticating  or  delivering  any  Bond,  all  interest 
coupons  attached  thereto  and  then  matured  shall  be  de¬ 
tached  and  cancelled  by  the  Trustee  and  delivered  to  the 
Company. 

Section  8.  The  holder  of  any  Bond  may  have  the 
ownership  thereof  registered  on  books  to  be  kept  at  the 
principal  office  of  the  Trustee  in  the  Borough  of  Man¬ 
hattan,  City  and  State  of  New  York,  and  such  registra¬ 
tion  noted  on  the  Bond.  After  such  registration,  no 


13 


further  transfer  of  such  Bond  shall  be  valid  unless  made 
on  the  said  books  by  the  registered  holder  in  person  or 
by  duly  authorized  attorney  and  similarly  noted  on  the 
Bond;  but  the  same  may  be  discharged  from  registry  by 
being  in  like  manner  transferred  to  bearer,  and  there¬ 
upon  transferability  by  delivery  shall  be  restored.  Bonds 
shall  continue  to  be  subject  to  successive  registrations 
and  transfers  to  bearer,  at  the  option  of  their  respective 
holders.  No  registration  of  any  Bond,  however,  shall 
affect  the  negotiability  of  the  interest  coupons  pertain¬ 
ing  thereto,  which  shall  continue  to  be  payable  to  bearer 
and  transferable  by  delivery  merely. 

Section  9.  In  case  any  definitive  or  temporary  Bond 
issued  under  this  Agreement  shall  become  mutilated  or 
be  destroyed  or  lost,  the  Company  in  its  discretion 
may  issue  and  thereupon  the  Trustee  shall  authen¬ 
ticate  and  deliver  a  new  Bond  of  the  same  series 
and  of  like  denomination,  in  exchange  and  substitution 
for  such  mutilated  Bond  or  in  lieu  of  and  substitution  for 
such  destroyed  or  lost  Bond.  In  case  of  destruction  or 
loss,  the  applicant  for  a  substitute  Bond  shall  furnish  to 
the  Company  and  the  Trustee  evidence  to  their  satisfac¬ 
tion,  in  their  discretion,  of  the  destruction  or  loss  of  such 
Bond  and  of  the  ownership  thereof,  and  also  such  security 
or  indemnity  as  may  be  required  by  the  Company  and  the 
Trustee.  Upon  the  issue  of  any  substitute  Bond,  the 
Company,  at  its  option,  may  require  the  payment  of  a 
sum  sufficient  to  reimburse  it  for  any  stamp  tax  or  other 
governmental  charge,  or  other  expense  connected  there¬ 
with,  and  also  a  further  sum,  not  exceeding  One  Dollar 
for  each  Bond  so  issued  in  substitution. 

Section  10.  Until  definitive  Bonds  of  any  series  are 
prepared  and  ready  for  delivery,  the  Company  may  exe- 


14 


cute  and  thereupon  the  Trustee  shall  authenticate  and 
deliver,  in  lien  of  such  definitive  Bonds,  one  or  more 
temporary  Bonds,  printed  or  lithographed,  with  or  with¬ 
out  coupons,  of  any  denomination  or  denominations 
authorized  for  such  series,  or  any  multiple  thereof,  sub¬ 
stantially  of  the  tenor  of  the  definitive  Bonds  of  such 
series,  except  that  such  temporary  Bonds  need  not  con¬ 
tain  provisions  for  registration.  Every  such  temporary 
Bond  shall  bear  upon  its  face  the  words:  “Temporary 
Bond;  Exchangeable  for  a  like  principal  amount  of  defini¬ 
tive  Bonds  of  the  same  series”,  and  shall  be  authenticated 
by  the  Trustee  in  substantially  the  same  manner,  and 
with  like  effect,  as  the  definitive  Bonds.  When  definitive 
Bonds  are  prepared  and  ready  for  delivery,  such  tempo¬ 
rary  Bonds  may  be  surrendered  for  exchange  therefor, 
and,  upon  the  cancellation  thereof,  the  Trustee  shall 
authenticate  and  deliver  in  exchange  therefor  an  equal 
aggregate  principal  amount  of  definitive  Bonds  of  the 
same  series.  Until  so  exchanged,  the  temporary  Bonds 
shall  in  all  respects  be  entitled  to  the  security  of  this 
Agreement  as  Bonds  issued  and  authenticated  hereunder ; 
and  in  the  case  of  temporary  Bonds  without  coupons, 
the  payment  of  interest  thereon  shall  be  noted  thereon 
upon  presentation  thereof  for  that  purpose. 

ARTICLE  SECOND. 

S UPPLEMENTAL  A GREEMENTS. 

Section  1.  The  Company  and  the  Trustee  may,  from 
time  to  time  and  at  any  time,  if  by  them  deemed  necessary 
or  advisable,  enter  into  such  agreements  or  indentures 
supplemental  hereto  as  shall  not  be  inconsistent  with  the 
terms  and  provisions  hereof  or  in  conflict,  with  the  rights 
of  holders  of  Bonds  theretofore  issued  hereunder  (which 
supplemental  agreements  or  indentures  shall  thereafter 


15 


form  a  part  hereof)  for  one  or  more  of  the  following 
purposes : 

(a)  To  assign,  convey,  mortgage,  pledge,  transfer  and 
set  over  unto  the  Trustee,  additional  property  or  prop¬ 
erties  of  the  Company,  for  the  equal  and  proportionate 
benefit  and  security  of  the  holders  of  all  Bonds  at  any 
time  issued  and  outstanding  under  this  Agreement. 

(b)  To  provide  for  the  creation  and  maintenance  of 
a  sinking  fund  for  the  equal  and  proportionate  benefit 
of  the  holders  of  all  Bonds  at  any  time  issued  and  out¬ 
standing  under  this  Agreement. 

(c)  To  provide  that  the  Bonds  of  any  particular 
series  may  be  issued  in  denominations  of  $100,  $500, 
$1,000  and/or  any  multiple  of  $1,000,  and  the  terms  and 
conditions  of  the  exchange  of  Bonds  of  one  denomination 
for  Bonds  of  another  denomination,  of  the  same  series. 

( d )  To  provide  that  the  Bonds  of  any  particular 
series  may  be  issued  as  coupon  Bonds  or  as  registered 
Bonds  without  coupons,  and  the  terms  and  conditions  of 
the  exchange  of  coupon  Bonds  for  registered  Bonds  with¬ 
out  coupons  and  of  registered  Bonds  without  coupons  for 
coupon  Bonds. 

(c)  To  provide  that  the  Bonds  of  any  particular 
series  shall  be  redeemable,  and  the  terms  and  conditions 
of  such  redemption. 

(/)  To  provide  that  the  Bonds  of  any  particular 
series  may  be  convertible  at  the  option  of  the  holders 
into  the  capital  stock  of  the  Company,  and  the  terms  and 
conditions  of  such  conversion. 

([/)  For  any  other  purpose  not  inconsistent  with  the 
terms  of  this  Agreement. 

Section  2.  The  terms  and  conditions  contained  in  any 
supplemental  agreement  or  indenture  as  to  any  provision 


16 


authorized  to  be  contained  therein  under  paragraphs 
(c),  ( d ),  ( e )  and  (/)  of  the  foregoing  Section  1  of  this 
Article  Second,  shall  be  set  forth  in  reasonable  and  cus¬ 
tomary  manner  in  the  Bonds  of  the  particular  series  to 
which  such  supplemental  agreement  or  indenture  shall 
apply. 

In  case  of  the  execution  and  delivery  of  any  supple¬ 
mental  agreement  or  indenture,  express  reference  may  be 
made  thereto  in  the  text  of  the  Bonds  of  any  series  issued 
thereafter,  if  deemed  necessary  or  advisable  by  the  Com¬ 
pany  and  the  Trustee. 

ARTICLE  THIRD. 

Particular  Covenants  of  the  Company. 

The  Company  covenants  with  the  Trustee  and  with  the 
holders  of  the  Bonds  as  follows : 

Section  1.  The  Company  will  not  issue  or  permit  to 
be  issued  any  Bonds  hereunder  in  any  manner  other  than 
in  accordance  with  the  provisions  of  this  Agreement;  and 
the  Company  will  pay  the  principal  and  interest  of  all 
the  Bonds  duly  issued  hereunder  according  to  the  terms 
thereof. 

Section  2.  So  long  as  any  of  the  Bonds  remain  out¬ 
standing  and  unpaid,  the  Company  will  keep  an  office  in 
the  Borough  of  Manhattan,  City  and  State  of  New  York, 
where  notices  and  demands  in  respect  of  the  Bonds  may 
be  served,  and  will,  from  time  to  time,  give  notice  to  the 
Trustee  of  the  location  of  such  office;  and,  in  case  the 
Company  shall  fail  so  to  do,  notices  may  be  served  and 
demands  may  be  made  at  the  principal  office  of  the  Trus¬ 
tee  in  the  said  Borough  of  Manhattan,  City  and  State  of 
New7  York.  The  Company  will  at  all  times  keep  or  cause 


17 


to  be  kept  at  the  said  principal  office  of  the  Trustee,  books 
in  which  the  ownership  of  any  of  the  Bonds  may  be  regis¬ 
tered,  upon  presentation  thereof  for  such  purpose,  as 
provided  in  Section  7  of  Article  First  hereof. 

Section  3.  So  long  as  any  of  the  Bonds  remain  out¬ 
standing  and  unpaid,  the  Company  will  not  directly  or 
indirectly  extend  or  consent  to  the  extension  of  the  time 
for  the  payment  of  any  interest  coupon  or  claim  for  in¬ 
terest  of  or  upon  any  Bond,  and  it  will  not  directly  or 
indirectly  be  a  party  to  any  arrangement  therefor,  either 
by  purchasing  or  refunding  or  in  any  manner  keeping 
alive  such  interest  coupon  or  claim  for  interest,  or  other¬ 
wise.  In  case  the  payment  of  any  such  interest  coupon 
or  claim  for  interest  shall  be  extended,  by  or  with  or  with¬ 
out  the  consent  of  the  Company,  then,  anything  in  this 
Agreement  contained  to  the  contrary,  notwithstanding, 
such  interest  coupon  or  claim  for  interest  so  extended 
shall  not  be  entitled,  in  case  of  default  hereunder,  to  any 
benefit  of  or  from  this  Agreement,  except  after  the  prior 
payment  in  full  of  the  principal  of  all  Bonds  secured 
hereunder  and  of  all  interest  coupons  or  claims  for  in¬ 
terest  which  shall  not  have  been  so  extended. 

Section  4.  The  franchises  and  properties  of  the  Com¬ 
pany,  both  real  and  personal,  are  now  wholly  free  from 
and  unencumbered  by  any  mortgage  or  lien  in  the  nature 
thereof. 

So  long  as  any  of  the  Bonds  remain  outstanding  and 
unpaid,  the  Company  will  not  execute  any  mortgage  upon 
or  make  any  pledge  of  any  part  of  its  fixed  assets,  as 
defined  in  this  Agreement,  other  than  a  mortgage  or 
pledge  for  the  specific  security  of  the  Bonds  issued  here¬ 
under,  without  providing  in  any  such  mortgage  or  agree¬ 
ment  of  pledge  for  the  prior  security  of  the  Bonds  issued 


18 


hereunder  and  the  payment  thereof  in  priority  to  the 
payment  of  any  other  bonds,  notes  or  obligations  secured 
by  such  mortgage  or  pledge ;  and  it  will  not  either  directly 
or  indirectly  make,  issue  or  negotiate  any  issue  of  bonds, 
notes  or  other  funded  obligations  without  expressly  pro¬ 
viding  in  the  terms  thereof,  as  a  part  of  the  same,  that 
all  such  bonds,  notes  or  funded  obligations  shall  be  sub¬ 
ject  and  inferior  to  the  Bonds  issued  hereunder,  and  that 
none  of  such  bonds,  notes  or  funded  obligations  shall  be 
payable  or  paid,  and  that  the  payment  of  the  same  shall 
be  unconditionally  postponed,  and  that  the  holders 
thereof  shall  have  no  right  in  law  or  in  equity  to  sue 
for  or  enforce  the  payment  thereof,  by  suit  or  otherwise, 
until  all  the  Bonds  issued  hereunder  shall  have  been  paid 
in  full ;  provided ,  that  nothing  in  this  Section  4  shall 
apply  to  any  notes,  debts,  obligations  or  liabilities  which 
may  be  made,  incurred  or  contracted  by  the  Company  in 
the  ordinary  course  of  conducting  its  business. 

The  term  “fixed  assets”,  as  used  in  this  Agree¬ 
ment,  shall  include  real  estate,  mines,  mining  prop¬ 
erties,  claims  and  leases,  mineral  lands,  timber  lands, 
buildings,  machinery,  plants  and  equipment  and  any 
stocks,  bonds  or  other  securities  of  any  constituent 
company  owned  by  the  Company  or  by  any  constitu¬ 
ent  company. 

The  term  “constituent  company”,  as  used  in  this 
Agreement,  shall  mean  any  corporation  or  associa¬ 
tion  of  which  the  Company,  either  directly  or  through 
one  or  more  other  corporations  or  associations,  shall 
own  at  least  seventy-five  per  cent,  of  the  issued  and 
outstanding  capital  stock. 

Section  5.  So  long  as  any  of  the  Bonds  remain  out¬ 
standing  and  unpaid,  the  Company  will  not  cause,  suffer 


19 


or  permit  any  constituent  company,  as  defined  in  this 
Agreement,  to  mortgage  or  pledge,  or  to  suffer  or 
permit  any  lien  or  other  charge  to  be  imposed  upon, 
any  of  the  fixed  assets  of  such  constituent  company, 
unless  all  the  bonds,  notes  or  other  obligations  secured 
by  such  mortgage  or  pledge  are  forthwith  deposited  and 
pledged  with  the  Trustee  under  this  Agreement,  as  addi¬ 
tional  security  for  the  Bonds  issued  hereunder ;  provided, 
that  no  obligations  of  any  constituent  company,  issued 
hereafter  for  the  purpose  of  renewing  maturing  obliga¬ 
tions  thereof  now  secured  by  an  existing  mortgage  or 
other  lien  upon  the  fixed  assets  of  such  constituent  com¬ 
pany,  need  be  pledged  with  the  Trustee  hereunder,  except 
in  so  far  as  the  aggregate  principal  amount  of  the  obliga¬ 
tions  issued  in  renewal  of  maturing  obligations  shall  ex¬ 
ceed  the  principal  amount  of  such  maturing  obligations. 

Section  fi.  So  long  as  any  of  the  Bonds  remain  out¬ 
standing  and  unpaid,  the  Company  and  each  of  its  con¬ 
stituent,  companies  will  maintain,  preserve  and  keep  all 
its  and  their  property,  buildings,  machinery,  plants, 
equipment  and  fixtures  in  thorough  repair  and  condition, 
and  will,  from  time  to  time,  make  all  needful  and  proper 
repairs  thereto  and  replacements  thereof;  and  the  Com¬ 
pany  will  promptly  pay  and  discharge  or  cause  to  be  paid 
and  discharged  any  and  all  lawful  taxes,  rates,  levies, 
assessments,  liens,  claims  or  other  charges,  whatsoever, 
upon  its  property  and  the  properties  of  its  constituent 
companies  and  every  part  thereof  and  upon  the  income 
derived  from  its  and  their  operations;  provided,  that 
neither  the  Company  nor  any  constituent  company  s'm11 
be  required  to  pay  or  discharge  any  tax,  rate,  levy,  ass 
ment,  lien,  claim  or  other  charge,  so  long  as  it  shall  in 
good  faith  and  by  appropriate  legal  proceedings  contest 
the  validity  thereof. 


20 


Section  7.  So  long  as  any  of  the  Bonds  remain  out¬ 
standing  and  unpaid,  the  Company  will  at  all  times  work 
and  develop,  or  cause  to  be  worked  and  developed,  its 
mineral  lands  and  mining  properties  and  the  mineral 
lands  and  mining  properties  of  its  constituent  companies, 
and  its  and  their  concentrating  and  smelting  plants  and 
refineries,  to  the  extent  that  the  same  may,  from  time  to 
time,  be  profitably  or  conveniently  worked  or  developed, 
in  a  proper  and  substantial  manner  and  in  accordance 
with  good  mining  practice. 

Section  8.  So  long  as  any  of  the  Bonds  remain  out¬ 
standing  and  unpaid,  the  Company  and  each  of  its  con¬ 
stituent  companies  will  keep  all  its  and  their  properties, 
buildings,  machinery,  equipment  and  fixtures,  and  all  its 
and  their  stock  and  material,  insured  in  good  and  respon¬ 
sible  insurance  companies  against  loss  or  damage  by  fire, 
explosion,  wind  or  flood,  in  such  manner  and  to  the  same 
extent  as  is  appropriate  in  the  business  in  which  such  prop¬ 
erty  is  employed;  and  the  Company,  upon  request  of  the 
Trustee,  from  time  to  time,  will  furnish  or  cause  to  be 
furnished  to  the  Trustee  a  full  list  of  the  companies  issu¬ 
ing  policies  of  insurance  on  the  said  properties,  setting 
forth  the  character  and  amount  of  each  policy.  The 
Trustee,  however,  shall  not  be  required  to  request  such 
statements  to  be  furnished  to  it  more  often  than  once  in 
each  year.  In  case  of  loss  or  damage  to  the  property 
of  the  Company  or  of  any  of  its  constituent  companies, 
whereby  the  sum  of  $5,000,  or  more,  shall  be  col¬ 
lected  or  received  under  any  policy  or  policies  of  insur¬ 
ance,  all  such  insurance  moneys  shall  be  applied  either 
(a)  in  or  towards  the  restoration  and  replacement  of  the 
property  so  lost  or  damaged,  or  (b)  in  or  towards  the 
acquisition  of  other  property  for  the  use  of  the  business 
of  the  company  suffering  such  loss  or  damage,  the  title 
to  which  shall  be  vested  in  it,  or  (c)  in  or  towards  the 


21 


construction  of  new  buildings  for  such  company,  or  (d) 
in  or  towards  the  purchase  or  construction  of  new 
machinery,  equipment  and  fixtures,  which  shall  be  in 
addition  to  the  plant  of  such  company  and  not  in  sub¬ 
stitution  for  old  or  worn  out  machinery,  equipment  or 
fixtures,  or  (c)  if  not  applied  for  one  or  more  of  the  fore¬ 
going  purposes  within  six  months  after  the  receipt  thereof, 
the  said  moneys  or  the  unexpended  balance  thereof  or  an 
amount  equivalent  thereto  shall  either  be  applied  to  the 
purchase  of  Bonds  of  any  series  issued  hereunder,  at  not 
more  than  the  current  market  price  thereof,  or  shall  be 
deposited,  in  cash  or  in  readily  marketable  securities  at 
least  equal  in  value  thereto,  with  the  Trustee  as  addi¬ 
tional  security  for  the  Bonds  issued  hereunder,  until  with¬ 
drawn  by  the  Company  as  hereinafter  in  Article  Fourth  of 
this  Agreement  provided.  Any  Bonds  issued  hereunder 
purchased  as  herein  provided  shall  forthwith  be  delivered 
to  the  Trustee  for  cancellation ;  and  the  aggregate  princi¬ 
pal  amount  of  Bonds  which  may  thereafter  be  issued  and 
outstanding  under  this  Agreement  shall  be  permanently 
reduced  by  the  principal  amount  of  such  Bonds  so  can¬ 
celled. 

The  term  “readily  marketable  securities”,  as 
used  in  this  Agreement,  shall  mean  any  stocks, 
notes,  bonds,  debentures  or  other  securities  listed 
and  regularly  dealt  with  on  the  New  York  Stock 
Exchange,  or  on  any  other  recognized  stock  ex¬ 
change  in  good  standing. 

Section  9.  So  long  as  any  of  the  Bonds  remain  out¬ 
standing  and  unpaid,  the  Company  will  not  lease  any 
substantial  or  essential  part  of  its  fixed  assets,  and  it 
will  not  suffer  or  permit  any  constituent  company  to  lease 
any  substantial  or  essential  part  of  the  fixed  assets  of 
such  constituent  company,  except  for  a  fair  and  reason¬ 
able  consideration  and  with  the  approval  of  the  Trustee. 


22 


In  case  the  Company  or  any  constituent  company  shall 
desire  to  lease  any  substantial  or  essential  part  of  its 
fixed  assets,  the  Company  shall  furnish  to  the  Trustee 
(1)  a  copy  of  the  proposed  lease,  certified  by  its  Secretary 
or  Assistant  Secretary,  setting  forth  the  full  considera¬ 
tion  to  be  received  therefor;  (2)  an  appraisal  made  at 
the  expense  of  the  Company  or  of  the  constituent  com¬ 
pany  proposing  to  execute  such  lease  by  a  competent  engi¬ 
neer  chosen  or  approved  by  the  Trustee,  setting  forth  the 
actual  replacement  value  of  such  fixed  assets  at  the  time, 
and  (3)  a  certificate  signed  by  the  President  or  Vice- 
President  of  the  Company  and  by  its  Treasurer  or 
Auditor  to  the  effect,  either  (a)  that  no  part  of  such 
fixed  assets  are  needed  for  use  in  or  in  connection  with 
the  business  of  the  company  proposing  to  execute  the 
lease,  or  (b)  that  such  company  has  made  provision  for 
the  acquisition  or  use  of  other  fixed  assets  or  facilities 
of  a  similar  character  and  at  least  equal  in  essential 
value  to  the  fixed  assets  so  to  be  leased  and  that  the  busi¬ 
ness  of  the  company  will  not  be  injuriously  affected  by 
such  lease.  If,  from  an  examination  of  the  said  instru¬ 
ments,  the  Trustee,  in  its  discretion,  shall  be  satisfied 
that  the  consideration  to  be  paid  under  the  proposed  lease 
is  a  fair  one  and  that  there  is  no  reasonable  objection 
thereto,  the  Trustee  shall  approve  the  lease  and  there¬ 
upon,  and  not  otherwise,  such  company  may  execute  and 
deliver  the  same.  The  Trustee  shall  not  be  responsible 
to  the  Company  or  to  any  constituent  company  or  to  the 
holder  of  any  Bond  or  Bonds  for  the  giving  or  the  with¬ 
holding  of  its  approval  of  any  lease,  as  herein  provided. 

Without  in  any  way  limiting  the  meaning  of  the 
term,  “substantial  or  essential  part  of  its  fixed 
assets”,  as  used  in  this  Section  9,  the  said  term  shall 


23 


include,  in  all  cases,  any  fixed  assets  of  a  book  value 
in  excess  of  the  sum  of  $100,000. 

Section  10.  In  case  the  Company  or  any  constituent 
company  shall  sell  any  substantial  or  essential  part  of  its 
fixed  assets,  the  Company  will  apply  or  cause  to  be 
applied  the  proceeds  of  such  sale,  or  an  amount  in  cash 
equivalent  thereto,  to  the  purchase  of  other  fixed  assets 
at  least  equal  in  value  to  the  fixed  assets  so  sold,  or  if 
not  so  applied  within  six  months  after  the  receipt  thereof, 
the  said  proceeds  or  equivalent  cash  amount  or  the 
unexpended  balance  thereof  shall  either  be  applied  to 
the  purchase  of  Bonds  of  any  series  issued  under  this 
Agreement  at  not  more  than  the  current  market  price 
thereof,  or  shall  be  deposited,  in  cash  or  in  readily 
marketable  securities  at  least  equal  in  value  thereto,  with 
the  Trustee  as  additional  security  for  the  Bonds  issued 
hereunder,  until  withdrawn  by  the  Company  as  herein¬ 
after  in  Article  Fourth  hereof  provided.  Any  Bonds  is¬ 
sued  hereunder,  purchased  as  above  provided,  shall  forth¬ 
with  be  delivered  to  the  Trustee  for  cancellation;  and  the 
aggregate  principal  amount  of  Bonds  which  may  there¬ 
after  be  issued  and  outstanding  under  this  Agreement 
shall  be  permanently  reduced  by  the  principal  amount 
of  such  Bonds  so  cancelled. 

Without  in  any  way  limiting  the  meaning  of  the 
term  “substantial  or  essential  part  of  its  fixed 
assets”,  as  used  in  this  Section  10,  any  fixed  assets 
sold  by  the  Company  and/or  any  constituent  com¬ 
pany  or  companies,  within  any  period  of  one  year, 
shall  be  included  in  the  meaning  of  the  said  term 
in  so  far  as  the  sale  price  of  the  fixed  assets 
so  sold  shall  exceed  in  the  aggregate  the  sum  of 
$100,000. 


24 


Section  11.  So  long  as  any  of  the  Bonds  remain  out¬ 
standing  and  unpaid,  the  Company  will  not  consolidate 
with  or  permit  itself  to  be  merged  into  any  corporation, 
other  than  a  constituent  company,  if  the  holders  of 
twenty-five  per  cent,  or  more  of  the  Bonds  then  outstand¬ 
ing  shall  object  to  such  consolidation  or  merger,  unless, 
prior  thereto,  it  secures  all  the  Bonds  issued  hereunder 
by  a  closed  first  mortgage  and  pledge  on  and  of  all  its 
fixed  assets  and  other  properties. 

If,  at  any  time,  the  Company  shall  desire  to  consoli¬ 
date  with  or  be  merged  into  any  corporation  other  than 
a  constituent  company,  the  Company  shall  file  with  the 
Trustee  a  written  statement,  signed  by  its  President  or 
Vice-President  and  its  Secretary  or  Assistant  Secretary, 
setting  forth  in  such  reasonable  detail  as  shall  be  satis¬ 
factory  to  the  Trustee  the  proposed  terms  of  consolidation 
or  merger  and  naming  the  date  on  which  it  is  proposed 
that  such  consolidation  or  merger  shall  take  effect,  which 
date  shall  not  be  less  than  thirty-five  days  after  the  date  of 
the  filing  of  the  said  statement  with  the  Trustee;  and  in 
no  case  shall  such  consolidation  or  merger  take  effect 
prior  to  the  date  so  named.  Upon  receipt  of  the  said 
statement,  the  Trustee,  at  the  expense  of  the  Company, 
shall  cause  notice  of  the  proposed  consolidation  or  merger 
described  therein  to  be  published  in  two  daily  newspapers 
of  general  circulation  published  in  the  Borough  of  Man¬ 
hattan,  City  and  State  of  New  York,  and  in  one  daily 
newspaper  of  general  circulation  published  in  each  of  the 
Cities  of  Philadelphia,  Pennsylvania,  and  Chicago,  Illi¬ 
nois,  once  a  week  for  three  successive  weeks,  the  first 
publication  to  be  not  less  than  thirty,  nor  more  than  sixty, 
days  prior  to  the  date  named  in  the  said  statement  of  the 
Company  as  the  date  on  which  it  is  proposed  that  such 
consolidation  or  merger  shall  take  effect,  and,  at  least 
thirty  days  prior  to  such  date,  the  Trustee  shall  also 


25 


cause  similar  notice  to  be  mailed  to  the  registered  holders 
of  any  of  the  Bonds.  Such  notice  shall  briefly  set  forth 
the  proposed  terms  of  consolidation  or  merger,  as  shown 
in  the  said  statement  of  the  Company  filed  with  the  Trus¬ 
tee,  and  shall  call  upon  any  of  the  holders  of  the  Bonds 
who  may  not  approve  of  the  proposed  consolidation  or 
merger  to  file  with  the  Trustee,  not  later  than  a  date  to  be 
named  in  the  said  notice,  which  date  shall  be  twenty-five 
days  after  the  date  of  the  first  publication  thereof,  written 
notice,  addressed  to  the  Trustee,  that  such  holder  objects 
to  the  proposed  consolidation  or  merger.  If,  on  or  before 
the  said  date,  the  Trustee  shall  have  received  notice  of 
objection  from  the  holders  of  twenty-five  per  cent,  or  more 
of  the  Bonds  then  outstanding,  the  Trustee  shall  forth¬ 
with  notify  the  Company  thereof;  and,  in  such  case,  the 
Company  will  not  suffer  or  permit  the  proposed  consolida¬ 
tion  or  merger  to  take  effect  or  to  be  consummated,  but 
will  suspend  or  discontinue  all  proceedings  with  respect 
thereto,  unless  and  until  it  shall  first  secure,  in  a  manner 
satisfactory  to  the  Trustee,  all  the  Bonds  issued  here¬ 
under  and  then  outstanding,  by  a  closed  first  mortgage 
and  pledge  on  and  of  all  its  fixed  assets  and  other 
properties. 

Section  12.  So  long  as  any  of  the  Bonds  remain  out¬ 
standing  and  unpaid,  the  earned  surplus  of  the  Company, 
calculated  in  substantially  the  same  manner  as  the  earned 
surplus  shown  by  the  annual  reports  of  the  Company  in 
the  years  prior  to  the  year  1918,  shall  never  be  re¬ 
duced  (except  by  the  declaration  and  payment  of  stock 
dividends  after  January  1,  1919)  to  an  amount  less  than 
the  aggregate  principal  amount  of  Bonds  at  the  time 
outstanding  hereunder;  and  no  Bonds  shall  at  any  time  be 
issued  under  this  Agreement,  unless  at  the  time  of  the 
issue  thereof  the  earned  surplus  of  the  Company,  calcu- 


26 


lated  in  substantially  the  same  manner  as  the  earned 
surplus  shown  by  such  annual  reports  (including  so 
much  thereof  as  may  have  been  capitalized  by  the  declara¬ 
tion  and  payment,  after  January  1,  1919,  of  stock  divi¬ 
dends),  shall  be  at  least  equal  to  the  aggregate  principal 
amount  of  the  Bonds  then  outstanding  and  then  to  be 
issued. 

Section  13.  So  long  as  any  of  the  Bonds  remain  out¬ 
standing  and  unpaid,  the  Company  will  render  to  the 
Trustee,  on  or  before  June  1  in  each  year,  commencing 
with  the  year  1919,  an  itemized  statement  of  its  consoli¬ 
dated  income  account  for  the  preceding  calendar  year, 
and  a  consolidated  balance  sheet,  taken  at  the  close 
thereof,  certified  by  its  President  or  Vice-President  and 
its  Treasurer  or  Auditor,  setting  forth  the  financial  con¬ 
dition  of  the  Company  and  its  constituent  companies. 
Such  statement  shall  be  audited  by  certified  public 
accountants  appointed  or  approved  by  the  Trustee,  who 
shall  file  with  the  Trustee  a  certificate  of  such  audit. 

Section  14.  Except  as  herein  otherwise  provided  or 
permitted,  either  expressly  or  by  implication,  the  Com¬ 
pany  will  at  all  times  do  or  cause  to  be  done  all  things 
necessary  to  preserve  and  keep  in  full  force  and  effect  its 
corporate  existence,  rights  and  franchises  and  the  cor¬ 
porate  existence,  rights  and  franchises  of  each  of  its  con¬ 
stituent  companies,  and  the  Company  will  comply,  and 
will  cause  each  of  its  constituent  companies  to  comply, 
with  all  the  laws  of  the  State  of  Montana  and  of  any 
other  state  or  states  of  the  United  States  or  of  any  foreign 
country  or  political  division  thereof  applicable  to  the  Com¬ 
pany  or  its  constituent  companies,  or  any  of  them,  in  such 
manner  and  form  as  counsel  may  advise;  and  it  will  not 
do,  suffer  or  permit  any  matter  or  thing  whatsoever, 


27 


whereby  the  payment  of  the  indebtedness  evidenced  by  the 
Bonds  issued  hereunder  might  or  could  be  hindered,  de¬ 
layed  or  imperilled. 

Section  15.  If,  at  any  time,  any  constituent  company, 
any  part  of  whose  capital  stock  shall  then  be  pledged 
hereunder  (except  the  Andes  Copper  Mining  Company 
and  the  Santiago  Mining  Company),  shall  increase  its 
issued  capital  stock,  the  Company  will  forthwith  cause 
the  same  proportion  of  such  increased  capital  stock  to  be 
deposited  and  pledged  with  the  Trustee  hereunder  as, 
immediately  prior  to  such  increase,  the  stock  of  such  con¬ 
stituent  company  then  pledged  hereunder,  bore  to  all  the 
stock  thereof  then  issued  and  outstanding.  So  long  as 
any  of  the  capital  stock  of  the  said  Andes  Copper  Mining 
Company  shall  be  deposited  and  pledged  hereunder,  the 
proportion  of  such  stock  so  pledged  shall  at  all  times  be 
all  the  issued  stock  thereof  which  the  Company  may  at 
any  time  own  or  be  entitled  to  own,  subject  to  the  terms  of 
a  certain  agreement,  dated  January  7,  1918,  between 
William  Braden,  John  D.  Ryan,  and  others,  a  copy 
of  which  agreement,  duly  certified  by  the  Secretary  of  the 
Company,  under  its  corporate  seal,  will  at  all  times,  so 
long  as  any  of  the  said  stock  is  pledged  with  the  Trustee, 
be  kept  on  file  at  the  principal  office  of  the  Trustee  and 
open  to  the  inspection  of  the  holders  of  the  Bonds.  So 
long  as  any  of  the  stock  of  the  said  Santiago  Mining  Com¬ 
pany  shall  be  deposited  and  pledged  hereunder,  the  pro¬ 
portion  of  such  stock  so  pledged  shall  at  all  times  be  at 
least  equal  to  eighty  per  cent,  of  the  total  issued  and 
outstanding  stock  thereof,  and  all  the  issued  capital  stock 
thereof  which  the  Company  may  at  any  time  own. 

Section  10.  So  long  as  any  of  the  stock  of  any  con¬ 
stituent  company  is  pledged  hereunder,  the  Company  will 


28 


not  suffer  or  permit  any  other  constituent  company  which 
may  own  any  shares  of  such  stock  to  sell  or  otherwise  dis¬ 
pose  of  the  same,  except  to  the  Company  or  to  another 
constituent  company,  some  part  of  whose  stock  is  pledged 
hereunder,  and,  in  case  the  Company  shall  itself  acquire 
the  same,  the  Company  will  forthwith  cause  all  such  stock 
to  be  pledged  hereunder.  In  case  any  constituent  com¬ 
pany  (except  the  Andes  Copper  Mining  Company),  any 
part  of  whose  capital  stock  is  owned  by  another  con¬ 
stituent  company,  shall  increase  its  issued  capital  stock, 
the  Company  will  cause  the  same  proportion  of  such  in¬ 
creased  capital  stock  to  he  acquired'  by  such  other  con¬ 
stituent  company  as,  immediately  prior  to  such  increase, 
the  stock  then  owned  by  such  other  constituent  company 
bore  to  all  the  stock  then  issued  and  outstanding. 

Section  17.  The  Company  will  promptly  pay  or  cause 
to  be  paid,  when  due,  any  and  all  further  calls  or  instal¬ 
ments  upon  any  of  the  shares  of  the  capital  stock  of  the 
Santiago  Mining  Company,  now  or  hereafter  pledged  here¬ 
under;  and  without,  demand  or  other  action  on  the  part 
of  the  Trustee,  will  promptly  deliver  to  the  Trustee,  for 
deposit  and  pledge  hereunder,  any  and  all  receipts  or  cer¬ 
tificates  showing  such  payments.  The  Trustee  shall  be 
under  no  liability  in  respect  to  any  calls  or  assessments 
upon  any  of  the  said  shares  of  stock,  nor  to  make  any 
inquiry  as  to  the  payment  of  any  balance  due  thereon. 

ARTICLE  FOURTH. 

Control  of  Stocks  and  Securities  Pledged  or 
Deposited. 

Section  1.  The  Trustee  may,  but  it  shall  not  be 
obliged  to,  cause  all  shares  of  stock  and  all  bonds  or  other 
securities  at  any  time  pledged  or  deposited  with  it  here¬ 
under  to  be  transferred  into  its  name  as  Trustee,  or  into 


29 


the  name  of  its  nominee  or  nominees,  and  shall  hold  the 
same  subject  to  the  terms  and  conditions  of  this  Agree¬ 
ment. 

Section  2.  So  long  as  the  Company  shall  not  be  in 
default  hereunder,  to  the  knowledge  of  the  Trustee,  the 
Company  shall  be  entitled,  from  time  to  time,  to  collect  for 
its  own  use  all  dividends  which  may  be  declared  on  any 
stock  which  shall  at  the  time  be  pledged  hereunder,  and 
all  sums  which  may  become  due  and  payable  for  any  in¬ 
terest  upon  any  bonds  or  other  securities  which  shall  be 
at  the  time  pledged  hereunder,  or  which  may  accrue  upon 
any  moneys  deposited  with  the  Trustee  hereunder;  and 
the  Trustee,  upon  the  written  request  of  the  Company, 
signed  by  its  President  or  Vice-President  and  its  Secre¬ 
tary  or  Assistant  Secretary,  shall  from  time  to  time  de¬ 
liver  to  the  Company  suitable  assignments  and  orders  for 
the  payment  to  it,  or  to  its  Treasurer  or  other  officer  or 
agent  designated  in  such  request,  of  all  dividends  which, 
from  time  to  time,  may  be  declared  or  become  payable  on 
such  stock,  and  shall  deliver  to  it,  or  to  its  Treasurer  or 
other  officer  or  agent  so  designated,  the  interest  coupons 
pertaining  to  any  coupon  bonds,  as  the  same  become  due 
and  payable,  and  suitable  assignments  and  orders  for  the 
payment  of  interest  upon  other  bonds  and  securities ;  and 
the  Trustee,  upon  request  of  the  Company,  signed  as  afore¬ 
said,  shall  from  time  to  time  pay  over  to  it,  or  to  its  Treas¬ 
urer  or  other  officer  or  agent  designated  in  such  request, 
any  and  all  sums  which  may  be  received  or  collected  by 
the  Trustee  for  dividends  upon  any  stock  or  as  interest 
upon  any  bonds  or  other  securities  and  any  and  all  sums 
which  may  accrue  as  interest  on  any  moneys  deposited 
with  the  Trustee  hereunder. 

Section  3.  So  long  as  the  Company  is  not  in  default 
hereunder,  to  the  knowledge  of  the  Trustee,  the  Company 


30 


shall  have  the  right  to  vote,  from  time  to  time,  all  shares 
of  stock  pledged  or  deposited  with  the  Trustee  hereunder 
for  all  purposes  not  contrary  to  the  provisions  of  this 
Agreement  or  inconsistent  herewith,  with  the  same  force 
and  effect  as  though  such  shares  of  stock  were  not  sub¬ 
ject  to  the  lien  hereof  and,  from  time  to  time,  upon  the 
written  demand  of  the  Company,  signed  by  its  President 
or  Vice-President  and  its  Secretary  or  Assistant  Secre¬ 
tary,  the  Trustee  shall  execute  and  deliver,  or  cause  to  be 
executed  and  delivered,  to  the  Company,  or  to  its  nom¬ 
inees,  suitable  powers  of  attorney  or  proxies  to  vote  upon 
any  such  shares  of  stock  as  shall  at  the  time  be  registered 
in  the  name  of  the  Trustee,  or  its  nominees;  but  every 
such  proxy,  unless  it  be  limited  so  as  expressly  to  author¬ 
ize  the  casting  of  a  vote  only  for  a  specific  purpose  or 
purpose  authorized  by  this  Agreement  or  not  inconsistent 
herewith,  shall  contain  a  provision  substantially  in  the 
following  form : 

“The  holder  of  this  proxy  shall  have  no  right  to 
vote  for,  but  is  instructed  to  vote  against,  any  lien, 
mortgage,  sale,  increase  of  capital  stock,  consolida¬ 
tion  or  charge  upon  either  the  property  or  earn¬ 
ings  of  the  corporation  in  respect  of  which  this 
proxy  is  issued,  which  shall  impair  or  diminish  the 
rights  and  interests  represented  by  the  stock  of 
the  said  corporation,  except  as  otherwise  expressly 
provided  in  the  Trust  Agreement,  dated  January 
2,  1919,  executed  between  the  Anaconda  Copper 
Mining  Company  and  the  Guaranty  Trust  Com 
pany  of  New  York,  as  Trustee.” 


The  Trustee  shall  be  fully  protected  in  the  giving  of 
any  proxy  or  proxies  or  powers  of  attorney  to  the  Com¬ 
pany,  pursuant  to  the  provisions  aforesaid;  and  it  shall 
not  be  responsible  for  any  abuse  or  mistake  in  the  con¬ 
struction  of  any  such  instrument. 


31 


Section  4.  The  Trustee  may  do  whatever  may  be 
necessary  for  the  purpose  of  maintaining,  preserving,  re¬ 
newing  or  extending  the  corporate  existence  of  any  con¬ 
stituent  company  whose  stock  is  pledged  hereunder,  and 
for  such  purpose  may,  from  time  to  time,  sell,  assign, 
transfer  and  deliver  so  many  shares  of  the  stock  of  any 
such  constituent  company  as  may  be  necessary  to  qualify 
persons  to  act  as  directors  thereof  or  in  any  other  official 
relation  to  any  such  company.  The  Trustee  may  like¬ 
wise,  in  its  discretion,  protect  the  properties  affected  by 
any  of  the  stocks,  bonds  or  other  securities  that  may,  from 
time  to  time,  be  pledged  hereunder,  by  instituting  or 
joining  in  judicial  proceedings,  by  the  purchase  at  judicial 
sale  of  property  so  affected,  by  joining  in  any  reorganiza¬ 
tion  of  such  property  or  of  the  companies  owning  the 
same,  or  in  any  other  manner  that  the  Trustee  may  deem 
expedient.  Whenever  the  Company,  while  not  in  default 
hereunder  to  the  knowledge  of  the  Trustee,  shall  in 
writing  so  request,  which  request  shall  state  that  the  Com¬ 
pany  has  no  shares  of  stock  available  for  that  purpose 
under  its  control  other  than  shares  pledged  under  this 
Agreement,  the  Trustee  shall  transfer  or  cause  to  be 
transferred  to  persons  designated  by  the  Company,  a  suf¬ 
ficient  number  of  shares  then  held  by  the  Trustee  here¬ 
under,  to  qualify  such  persons  to  act  as  directors  or  in 
any  other  official  relation  to  any  constituent  company ; 
provided,  that,  in  every  such  case,  the  Trustee  shall  make 
such  arrangements  as  it  shall  deem  proper  or  necessary 
for  the  protection  of  the  trusts  hereby  created  in  respect 
of  the  shares  of  stock  so  transferred. 

Section  5.  Subject  to  the  terms  hereinafter  in  this 
Section  5  set  forth,  the  Trustee  shall,  from  time  to  time, 
and  at  any  time,  upon  the  written  request  of  the  Com¬ 
pany,  signed  by  its  President  or  Vice-President  and  its 


32 


Secretary  or  Assistant  Secretary,  release  from  the  lien 
of  this  Agreement  and  deliver  to  or  upon  the  order  of  the 
Company  all  (but,  not  part  only)  of  the  capital  stock  of 
the  International  Smelting  Company,  the  Tooele  Valley 
Railway  Company,  the  International  Lead  Refining  Com¬ 
pany,  the  Raritan  Copper  Works  and  the  Diamond  Coal 
and  Coke  Company,  or  of  any  one  or  more  of  the  said  com¬ 
panies,  now  or  at  any  time  hereafter  pledged  hereunder, 
and/or  (but  not  part  only)  of  the  capital  stock,  as  a 
single  parcel,  of  the  Andes  Copper  Mining  Company,  the 
Andes  Exploration  Company  (of  Delaware),  the  Andes 
Exploration  Co.  (of  Maine),  the  Santiago  Mining  Com¬ 
pany  and  the  Potrerillos  Railway  Company,  now  or  at 
any  time  hereafter  pledged  hereunder,  upon  the  deliv¬ 
ery  to  and  the  deposit  or  pledge  with  the  Trustee,  in 
substitution  therefor,  of  the  stock,  bonds  or  other  securi¬ 
ties  of  other  constituent  companies  and/or  an  amount  in 
cash  at  least  equal  in  value  to  the  stock  so  released,  which 
cash,  so  deposited,  shall  be  paid  out  by  the  Trustee,  from 
time  to  time,  to  or  upon  the  written  order  of  the  Company, 
signed  by  its  President  or  Vice-President  and  its  Secre¬ 
tary  or  Assistant  Secretary,  upon  the  delivery  to  and  the 
pledge  with  the  Trustee  of  the  stock,  bonds  or  other  securi¬ 
ties  of  constituent  companies  at  least  equal  in  aggregate 
value  to  the  amount  of  cash  so  paid  out;  provided ,  that 
no  shares  of  stock  of  any  constituent  company  shall  at 
any  time  be  pledged  hereunder,  unless  such  shares  (or 
such  shares  together  with  other  shares  owned  by  another 
constituent  company,  some  part  of  whose  stock  shall  like¬ 
wise  be  pledged  hereunder)  shall  constitute  at  least 
seventy-five  per  cent,  of  all  the  shares  of  such  stock  at  the 
time  issued  and  outstanding,  and  unless  also  the  shares 
pledged  hereunder  shall  constitute  all  of  such  stock  then 
owned  by  the  Company;  and  provided,  further,  that  no 
bonds  or  other  securities  of  any  constituent  company  shall 


33 


at  any  time  be  pledged  hereunder,  except  as  provided  in 
Section  5  of  Article  Third  hereof,  unless  the  stock  thereof, 
to  the  extent  above  provided,  shall  also  be  pledged  with 
the  Trustee;  and  'provided,  further,  that  the  Andes  Ex¬ 
ploration  Company  (of  Delaware)  and  the  Andes  Explo¬ 
ration  Co.  (of  Maine),  or  either  of  them,  may  at  any  time 
be  dissolved,  upon  the  pledge  or  mortgage  with  or  to  the 
Trustee  of  all  the  fixed  assets  owned  by  such  constituent 
company  at  the  time  of  the  dissolution  thereof ;  and  upon 
receipt  by  the  Trustee  of  a  certificate,  signed  by  the  Pres¬ 
ident  or  Vice-President  and  the  Treasurer  or  Auditor  of 
the  Company,  verified  by  one  of  such  officers,  to  the  effect 
that  such  constituent  company  has  been  or  is  about  to  be 
dissolved  and  that  such  fixed  assets  so  pledged  or  mort¬ 
gaged  constitute  or  will  constitute  the  entire  fixed  assets 
of  such  constituent  company  at  the  time  of  the  dissolution 
thereof,  the  Trustee  shall  release  from  the  lien  hereof  and 
deliver  to  or  upon  the  written  order  of  the  Company, 
signed  by  its  President  or  Vice-President  and  its  Secre¬ 
tary  or  Assistant  Secretary,  all  the  capital  stock  of  the 
constituent  company  so  dissolved,  at  the  time  pledged 
hereunder.  Any  stock,  bonds  or  other  securities  of  a 
constituent  company  at  any  time  pledged  with  the  Trus¬ 
tee  hereunder  in  substitution  for  the  stock,  bonds  or  other 
securities  of  another  constituent  company  or  companies 
or  upon  the  withdrawal  of  cash,  as  above  provided,  shall 
likewise  be  released  by  the  Trustee  from  the  lien  hereof 
and  delivered  to  or  upon  the  order  of  the  Company,  from 
time  to  time,  in  the  manner  and  subject  to  the  conditions 
in  this  Section  5  set  forth  (but  only  as  a  single  parcel  as 
to  the  stock,  bonds  and  other  securities  of  each  con¬ 
stituent  company),  at  the  valuation  thereof  fixed  by  the 
Company  at  the  time  of  the  original  delivery  and  pledge 
thereof,  as  in  this  Section  provided,  irrespective  of  the 
subsequent  delivery  and  pledge  of  any  additional  shares 
of  such  stock. 


34 


At  the  time  of  the  delivery  to  and  the  pledge  with  the 
Trustee  hereunder  of  the  stock,  bonds  or  other  securities 
of  any  constitutent  company,  the  Company  shall  deliver 
to  the  Trustee  a  certificate,  in  form  satisfactory  to  the 
Trustee,  signed  by  the  President  or  Vice-President  of  the 
Company  and  its  Treasurer  or  Auditor,  verified  by  one  of 
such  officers,  which  certificate  shall  set  forth  the  estimated 
reasonable  value  of  such  stock,  bonds  and  other  securities, 
as  a  single  parcel,  and  shall  certify  that  the  shares  of 
stock  so  delivered  and  pledged  (or  such  shares  together 
with  other  shares  owned  by  another  constituent  company, 
some  part  of  whose  stock  is  likewise  pledged  hereunder) 
constitute  at  least  seventy-five  per  cent,  of  all  the  shares 
of  such  stock  at  the  time  issued  and  outstanding  and  that 
the  shares  so  pledged  constitute  all  of  such  stock  then 
owned  by  the  Company,  and  stating  also  such  other  per¬ 
tinent  facts  as  may  be  necessary  to  establish  the  right  of 
the  Company  to  the  release  of  any  stocks,  bonds  or  other 
securities  or  to  the  payment  of  any  deposited  cash.  The 
estimated  reasonable  value  of  such  stock,  bonds  and  other 
securities,  set  forth  in  the  said  certificate,  shall  be  taken 
as  the  actual  value  thereof  for  the  purpose  of  any  original 
pledge  and  of  any  subsequent  release  of  such  stock,  bonds 
and  other  securities  made  under  the  provisions  of  this 
Section  5. 

For  the  purpose  of  any  release  thereof  made  under  the 
provisions  of  this  Section  5,  the  stock  of  the  constituent 
companies  described  in  the  granting  clause  of  this  Agree¬ 
ment  and  pledged  hereunder  (together  with  any  addi¬ 
tional  stock  of  any  of  the  said  constituent  companies 
which  may  at  any  time  hereafter  be  pledged  hereunder), 
is  valued,  respectively,  as  follows: 

Capital  stock  of  International  Smelting  Company . $12,000,000; 

“  “  “  Tooele  Valley  Railway  Company . $  320,000; 

“  “  “  International  Lead  Refining  Company.  .$  750,000; 

“  “  “  Raritan  Copper  Works . $10,000,000; 

“  “  “  Diamond  Coal  and  Coke  Company . $  5,000,000; 


35 


Capital  stock  of  Andes  Copper  Mining  Company,  Andes 
Exploration  Company  (of  Delaware), 

Andes  Exploration  Co.  (of  Maine), 

Santiago  Mining  Company  and  Potre- 
rillos  Railway  Company  (as  a  single 
parcel)  . $60,000,000. 

Section  6.  Any  cash  or  securities  at  any  time  de¬ 
posited  with  the  Trustee  hereunder,  pursuant  to  the  pro¬ 
visions  of  Section  8  or  Section  10  of  Article  Third  of  this 
Agreement,  shall  be  held  by  the  Trustee  in  a  single  fund 
and,  so  long  as  the  Company  is  not  in  default  hereunder, 
to  the  knowledge  of  the  Trustee,  may  be  withdrawn  by  the 
Company,  from  time  to  time,  in  reimbursement  of  actual 
and  reasonable  expenditures  made  by  it  in  the  purchase, 
construction  or  acquisition,  after  the  date  of  the  deposit 
of  such  cash  or  securities  with  the  Trustee,  of  fixed  as¬ 
sets  for  use  in  or  in  connection  with  the  business  of  the 
Company,  title  to  which  fixed  assets  shall  be  vested  in  it. 
In  case  the  Company  shall  at  any  time  desire  so  to  be 
reimbursed,  it  shall  deliver  to  the  Trustee  a  written  re¬ 
quest,  signed  by  its  President  or  Vice-President  and  its 
Secretary  or  Assistant  Secretary,  requesting  the  Trustee 
to  deliver,  in  accordance  with  the  terms  of  such  request,  a 
specified  amount  of  cash  and/or  securities  therein  de¬ 
scribed.  Such  request  shall  be  accompanied  by  a  certifi¬ 
cate,  in  form  satisfactory  to  the  Trustee,  signed  by  the 
President  or  Vice-President  of  the  Company  and  its 
Treasurer  or  Auditor,  setting  forth  that  the  Company 
has  made  stated  expenditures  in  the  purchase,  construc¬ 
tion  or  acquisition  (as  the  case  may  be),  after  a  date 
named  in  such  certificate,  or  fixed  assets  which  shall  be 
therein  described  in  reasonable  detail;  and  certifying, 
also,  that  such  expenditures  were  not  in  excess  of  the 
reasonable,  fair  value  of  such  fixed  assets,  that  such  expen¬ 
ditures  had  not  been  made  or  reimbursed  out  of  the  pro- 


36 


ceeds  of  any  insurance  or  of  the  sale  of  any  fixed  assets  or 
of  any  Bonds  issued  hereunder,  that  the  said  fixed  assets 
were  for  use  in  or  in  connection  with  the  business  of  the 
Company,  that  title  thereto  was  vested  in  the  Company, 
and  that  the  Company  is  not  in  default  in  respect  of  any  of 
the  covenants  or  agreements  contained  in  this  Agreement 
on  its  part  to  be  performed  or  observed.  In  case  the  Com¬ 
pany  shall  request  the  delivery  of  any  securities,  the  cer¬ 
tificate  shall  also  certify  that  the  current  market  value  of 
the  said  securities  is  not  in  excess  of  a  sum  therein  speci¬ 
fied.  Upon  receipt  of  such  request  and  certificate  the  Trus¬ 
tee,  if  satisfied  therewith,  shall  pay  out  from  the  said  fund 
and  deliver  in  accordance  with  the  said  request  the  cash 
and/or  securities  described  therein;  provided,  that  no 
such  payment  or  delivery  shall  be  made  except  of  cash  or 
securities  on  deposit  with  the  Trustee  in  the  said  fund 
on  or  prior  to  the  date  named  in  the  said  certificate  as  the 
date  upon  which  the  expenditures  in  respect  of  which 
reimbursement  is  desired  were  made. 

Anything  herein  in  this  Section  6  to  the  contrary 
contained  notwithstanding,  the  Company,  while  not  in 
default,  hereunder  to  the  knowledge  of  the  Trustee,  shall 
have  the  right  at  any  time  to  withdraw  any  of  the  said 
cash  or  securities  then  on  deposit  with  the  Trustee  in  the 
said  fund,  upon  the  delivery  to  and  the  deposit  with  the 
Trustee,  in  lieu  thereof,  of  other  readily  marketable  securi¬ 
ties  and/or  cash,  at  least  equal  in  aggregate  value  to  the 
cash  and  securities  so  withdrawn.  In  case  the  Company 
shall,  at  any  time,  desire  so  to  withdraw  any  cash  or 
securities,  it  shall  deliver  to  the  Trustee  a  written  request, 
signed  by  its  President  or  Vice-President  and  its  Secre¬ 
tary  or  Assistant  Secretary,  requesting  the  Trustee  to  pay 
out  and  deliver,  in  accordance  with  the  terms  of  such 
request,  a  specified  amount  of  cash  and/or  securities 
therein  described,  and  shall,  at  the  same  time,  deliver 


37 


to  the  Trustee,  for  deposit  in  the  said  fund,  in  lieu  of  the 
cash  or  securities  so  withdrawn,  other  readily  market¬ 
able  securities  and/or  cash,  of  at  least  equal  aggregate 
value,  accompanied  by  a  certificate,  signed  by  the  Presi¬ 
dent  or  Vice-President  of  the  Company  and  its  Treas¬ 
urer  or  Auditor,  to  the  effect  that  the  securities  so  to  be 
withdrawn  were  of  a  current  market  value  not  in  excess 
of  a  sum  therein  specified,  and  that  the  securities  deliv¬ 
ered  and  deposited  in  lieu  thereof  were  of  a  current  mar¬ 
ket  value  of  not  less  than  a  sum  therein  specified.  Any 
cash  or  securities  at  any  time  so  delivered  to  the  Trustee 
in  lieu  of  and  upon  the  withdrawal  of  any  other  securities 
or  cash  may  in  turn  be  withdrawn,  from  time  to  time, 
on  the  terms  and  conditions  hereinbefore  set  forth. 

Section  7.  The  Trustee  may  accept  any  certificate  or 
written  request  delivered  to  it  pursuant  to  any  of  the 
provisions  of  this  Article  Fourth  as  conclusive  proof  of 
any  of  the  facts  therein  set  forth,  and  the  Trustee  shall 
be  fully  protected  for  or  in  respect  of  any  action  taken 
or  suffered  by  it  under  any  of  the  provisions  hereof  in 
reliance  thereon ;  but  the  Trustee  may,  in  its  discretion, 
require  such  other  and  further  proof  of  any  such  fact 
or  facts  as,  under  the  circumstances,  it  may  deem  proper. 

ARTICLE  FIFTH. 

Remedies  of  Trustee  and  Bondholders. 

Section  1.  If  default  be  made  in  the  payment  of  the 
principal  of  any  of  the  Bonds  when  due,  or  if  default 
be  made  in  the  payment  of  any  instalment  of  interest 
thereon,  and  such  default  shall  continue  for  thirty  days, 
or  if  default  be  made  in  the  due  observance  or  perform¬ 
ance  of  any  other  covenant  or  condition  herein  required 
to  be  kept  or  performed  by  the  Company,  and  such  default 


38 


shall  continue  for  thirty  days  after  written  notice  thereof 
shall  have  been  given  to  the  Company  by  the  Trustee, 
which  shall  give  such  notice  upon  the  written  request  of 
the  holders  of  twenty-five  per  cent,  in  aggregate  principal 
amount  of  the  Bonds  then  outstanding,  then,  in  each  and 
every  such  case,  the  Trustee,  by  notice  in  writing  mailed 
to  the  Company,  may  and,  upon  the  written  request  of 
the  holders  of  twenty-five  per  cent,  in  aggregate  principal 
amount  of  the  Bonds  then  outstanding,  shall  declare  the 
principal  and  interest  of  all  the  Bonds  of  any  and  all 
series  then  outstanding  to  be  immediately  due  and 
payable;  and  upon  any  such  declaration  the  same 
shall  become  and  be  immediately  due  and  payable, 
anything  in  the  Bonds  or  in  this  Agreement  con¬ 
tained  to  the  contrary  notwithstanding.  This  pro¬ 
vision  is  subject,  however,  to  the  condition,  that 
if,  at  any  time  after  the  principal  of  the  Bonds  shall  have 
been  so  declared  due  and  payable,  but  before  any  sale  of 
the  Trust  Property  shall  have  been  made,  as  hereinafter 
provided,  and  prior  to  the  date  of  maturity  specified  in 
the  Bonds,  all  arrears  of  interest  upon  all  the  Bonds, 
witli  interest  on  overdue  instalments  of  interest  at  the 
rates  specified  in  the  respective  Bonds,  shall  have  been 
paid,  together  with  the  reasonable  charges  and  expenses 
of  the  Trustee,  its  agents  and  attorneys,  and  all  other 
obligations  of  the  Company  in  respect  of  which  it  was  in 
default  under  this  Agreement  shall  have  been  fulfilled 
and  performed,  then,  in  each  such  case,  the  holders  of  a 
majority  in  amount  of  the  Bonds  then  outstanding,  by 
written  notice  to  the  Company  and  to  the  Trustee,  may 
waive  such  default  and  its  consequences  and  rescind  any 
such  declaration;  but  no  such  waiver  shall  extend  to  or 
affect  any  subsequent  default  or  impair  any  right  conse¬ 
quent  thereon. 


39 


Section  2.  If  default  be  made  by  the  Company  in  any 
of  the  respects  specified  in  Section  1  of  this  Article  Fifth, 
and  such  default  shall  continue  for  the  period,  if  any, 
therein  specified,  then,  in  each  and  every  such  case,  the 
Trustee  may  and,  upon  the  written  request  of  the  holders 
of  twenty-five  per  cent,  in  aggregate  principal  amount 
of  the  Bonds  then  outstanding,  shall,  either  (a)  offer 
for  sale  and  sell  all  the  Trust  Property  then  in  its  posses¬ 
sion,  or  ( b )  proceed  by  a  suit  or  suits  at  law  or  in  equity, 
as  the  Trustee  may  be  advised  by  counsel,  to  enforce  the 
payment  of  the  Bonds  or  the  performance  of  any  of  the 
covenants  or  conditions  in  respect  of  which  the  Company 
may  be  in  default  hereunder,  or  to  foreclose  this  Agree¬ 
ment  and  sell  the  Trust  Property  under  the  judgment  or 
decree  of  a  court  of  competent  jurisdiction. 

Any  sale  or  sales  hereunder,  unless  a  court  of  compet¬ 
ent  jurisdiction  shall  otherwise  direct,  shall  be  made  at 
public  auction  at  such  place  in  the  Borough  of  Manhattan, 
City  of  New  York,  or  elsewhere,  and  at  such  times  and  on 
such  terms  as  the  Trustee  may  determine,  and  the  Trust 
Property  may  be  sold  in  such  lots  and  such  sales  may  be 
conducted  in  such  manner  as  the  Trustee  may  from  time  to 
time  determine,  or  as  may  from  time  to  time  be  directed 
by  the  holders  of  a  majority  in  aggregate  principal 
amount  of  the  Bonds  then  outstanding.  Notice  of  any 
such  sale,  whether  under  power  of  sale  herein  granted 
or  under  judicial  proceedings,  shall  state  the  time  when 
and  the  place  where  the  same  is  to  be  made,  shall  contain 
a  brief  description  of  the  Trust  Property  to  be  sold  and 
shall  be  published  twice  a  week  for  two  successive  weeks 
prior  to  the  date  fixed  for  such  sale  in  two  daily  news¬ 
papers  of  general  circulation  published  in  the  Borough  of 
Manhattan,  City  of  New  York ;  and  such  other  notice  shall 
also  be  given  as  may  be  required  by  any  statute  or  rule 
or  order  of  court. 


40 


The  Trustee  shall  have  power,  in  its  discretion,  to  ad¬ 
journ  any  sale,  from  time  to  time,  as  to  the  whole  or  any 
part  of  the  Trust  Property  and,  if  so  adjourned,  to  make 
such  sale  upon  the  day  to  which  the  adjournment  is  had, 
without  further  notice.  Any  sale  made  as  herein  pro¬ 
vided  shall  he  a  perpetual  bar,  both  at  law  and  in  equity, 
against  the  Company  and  its  successors,  and  against  all 
persons  claiming  or  to  claim  the  Trust  Property,  or  any 
part  thereof,  by,  through  or  under  it  or  them. 

Upon  the  sale  of  the  Trust  Property,  whether  under 
the  power  of  sale  herein  granted  or  under  judicial  pro¬ 
ceedings,  every  purchaser  shall  be  entitled,  in  making 
payment  therefor,  after  paying  in  cash  so  much  as  may  be 
necessary  to  cover  the  costs  and  expenses  of  the  sale  and 
of  the  proceedings  incident  thereto,  and  all  other  charges 
that  may  be  required  by  decree  or  otherwise  to  be  paid  in 
cash,  including  the  compensation  of  the  Trustee  and  its 
expenses,  to  appropriate  and  use  toward  the  payment  of 
the  remainder  of  the  purchase  price  any  of  the  Bonds 
and  interest  coupons  outstanding  hereunder,  reckoning 
each  Bond  and  interest  coupon  so  appropriated  and  used 
at  such  sum  as  shall  be  payable  thereon  out  of  the  net  pro¬ 
ceeds  of  the  sale.  If  the  net  proceeds  of  such  sale  shall  be 
sufficient  to  pay  such  Bonds  and  interest  coupons  in  full, 
they  shall  be  cancelled  and,  upon  written  demand,  sur¬ 
rendered  by  the  Trustee  to  or  upon  the  order  of  the  Com¬ 
pany  ;  but  if  the  sum  applicable  in  respect  thereto  is  not 
sufficient  to  pay  such  Bonds  in  full,  the  sum  so  allowed  on 
account  thereof  shall  be  noted  thereon  as  paid. 

At  any  sale  the  Trustee,  either  in  behalf  of  the  holders 
of  the  Bonds  or  in  its  own  behalf,  or  any  holder  of  any 
Bond,  may  bid  for  and  may  purchase  such  property,  and 
may  make  payment  therefor  as  aforesaid,  and,  upon  com¬ 
pliance  with  the  terms  of  sale,  may  hold,  retain  and  dis¬ 
pose  of  such  property  without  further  accountability. 


41 


In  case  of  any  such  sale  of  any  part  of  the  Trust  Prop¬ 
erty,  the  whole  of  the  principal  of  the  Ponds  then  out¬ 
standing,  if  not  previously  due,  shall  become  immediately 
due  and  payable,  anything  in  the  Bonds  or  in  this  Agree¬ 
ment  contained  to  the  contrary  notwithstanding. 

Section  3.  If  default  be  made  in  the  payment  of  any 
part  of  the  principal  or  interest  of  any  of  the  Bonds  when 
due,  whether  upon  the  maturity  thereof  or  upon 
declaration,  or  otherwise,  then,  in  each  such  case, 
upon  demand  of  the  Trustee,  the  Company  will 
pay  to  the  Trustee,  for  the  benefit  of  the  holders 
of  the  Bonds  and  interest  coupons  then  outstanding,  the 
whole  amount  then  due  and  payable  on  all  such  outstand¬ 
ing  Bonds  and  interest  coupons  for  principal  or  interest, 
or  both,  with  interest  upon  overdue  instalments  of 
interest  at  the  rates  specified  in  the  respective  Bonds; 
and  in  case  the  Company  shall  fail  to  pay  the  same  forth¬ 
with  upon  such  demand,  the  Trustee,  in  its  own  name, 
and  as  trustee  of  an  express  trust,  shall  be  entitled  to 
recover  judgment  against  the  Company  for  the  whole 
amount  so  due  and  unpaid.  The  Trustee  shall  be  entitled 
to  recover  judgment,  as  aforesaid,  either  before  or  after 
or  during  the  pendency  of  any  proceedings  for  the  enforce¬ 
ment  of  any  of  the  provisions  of  this  Agreement,  •  and 
either  before  or  after  any  sale  of  the  Trust  Property,  and 
the  right  of  the  Trustee  to  recover  such  judgment  shall 
not  be  affected  by  any  sale  of  the  Trust  Property  or  by  the 
exercise  of  any  right,  power  or  remedy  for  the  enforce¬ 
ment  of  the  provisions  of  this  Agreement,  or  the  fore¬ 
closure  hereof;  and  in  case  of  a  sale  of  the  Trust  Prop¬ 
erty  and  of  the  application  of  the  proceeds  of  sale  to  the 
payment  of  the  amount  then  due  upon  the  outstanding 
Bonds  and  interest  coupons,  the  Trustee,  in  its  own  name, 
and  as  trustee  of  an  express  trust,  shall  be  entitled  to 


42 


enforce  payment  of  and  to  receive  all  amounts  then  re¬ 
maining  due  and  unpaid  upon  any  and  all  of  the  Bonds 
then  outstanding  for  the  benefit  of  the  holders  thereof, 
and  shall  he  entitled  to  recover  judgment  against  the  Com¬ 
pany  for  any  amount  remaining  unpaid  upon,  or  in  respect 
to,  the  Bonds  and  interest  coupons,  together  with  interest. 
No  recovery  of  any  such  judgment  and  no  levy  of  any 
execution  under  any  such  judgment  upon  the  Trust  Prop¬ 
erty,  or  upon  any  other  property,  shall  in  any  manner 
or  to  any  extent  affect  the  lien  of  the  Trustee  upon  the 
Trust  Property,  or  any  part  thereof,  or  any  rights,  powers 
or  remedies  of  the  holders  of  the  Bonds;  but  such  lien, 
rights,  powers  and  remedies  shall  continue  unimpaired  as 
before.  Any  moneys  collected  by  the  Trustee  under  this 
Section  3  shall  be  applied  by  the  Trustee  in  the  same  order 
and  in  the  same  manner  as  the  proceeds  resulting  from 
any  sale  of  the  Trust  Property,  as  provided  in  Section  4 
of  this  Article. 

All  rights  of  action  under  this  Agreement  may  be  en¬ 
forced  by  the  Trustee  without  the  possession  of  any  Bonds 
or  the  production  thereof  on  the  trial  or  other  proceed¬ 
ings  relative  thereto. 


Section  4.  In  case  of  any  sale  of  the  trust  property, 
whether  under  the  power  of  sale  hereby  granted,  or  pur¬ 
suant  to  judicial  proceedings,  the  proceeds  thereof,  to¬ 
gether  with  any  other  sums  which  may  then  be  held  by 
the  Trustee  under  any  of  the  provisions  of  this  Agreement 
as  part  of  the  security  hereunder,  shall  be  applied,  as 
follows : 


First.  To  the  payment  of  the  costs,  expenses, 
fees,  and  other  charges  of  such  sale,  and  a  reason¬ 
able  compensation  to  the  Trustee^  its  agents  and 
attornej's,  and  to  the  payment  of  all  expenses  and 


43 


liabilities  incurred  and  advanced,  or  disbursements 
made,  by  the  Trustee ; 

Second.  To  the  payment  of  the  whole  amount 
then  due  and  unpaid  either  for  principal  or  inter¬ 
est,  or  for  both  principal  and  interest,  upon  the 
Bonds,  with  interest  on  the  overdue  instalments  of 
interest  at  the  rates  specified  in  the  respective 
Bonds;  and,  in  case  such  proceeds  shall  be  insuf¬ 
ficient  to  pay  in  full  the  whole  amount  so  due  and 
unpaid,  then  to  the  payment  of  such  principal  and 
interest  ratably,  according  to  the  aggregate  of  such 
principal  and  the  accrued  and  unpaid  interest, 
without  preference  or  priority  of  principal  over 
interest,  or  of  interest  over  principal,  or  of  any 
instalment  of  interest  over  any  other  instalment 
of  interest,  except  as  to  the  difference  (if  any)  in 
the  respective  rates  of  such  interest;  and 

Third.  To  the  payment  of  the  remainder,  if  any, 
to  the  Company,  its  successors  or  assigns,  or  to 
whomsoever  may  be  lawfully  entitled  to  receive  the 
same. 


Section  5.  If  default  be  made  by  the  Company  in  any 
of  the  respects  specified  in  Section  1  of  this  Article  Fifth, 
and  such  default  shall  continue  for  the  period,  if  any, 
therein  specified,  the  Trustee  shall  he  entitled  to  receive 
and  collect,  for  the  benefit  of  the  holders  of  the  Bonds, 
all  dividends  that  may  thereafter  he  declared  on  any 
stock  pledged  hereunder,  and  all  sums  which  may  there¬ 
after  become  due  and  payable  for  interest  upon  any  bonds 
or  other  securities  pledged  hereunder  or  which  may  there¬ 
after  accrue  upon  any  moneys  deposited  with  the  Trustee 
hereunder.  The  Trustee  shall  apply  any  and  all  moneys 
so  received  and  collected  by  it,  as  follows: 


44 


First.  In  case  the  principal  of  the  Bonds  shall 
have  not  become  due,  to  the  payment  of  the  inter¬ 
est  in  default  thereon  in  the  order  of  the  maturity 
of  the  instalments  of  such  interest,  with  interest 
thereon  at  the  rates  specified  in  the  respective 
Bonds,  such  payments  to  be  made  ratably  to  the 
persons  entitled  thereto,  without  any  discrimina¬ 
tion  or  preference,  except  as  to  the  difference  (if 
any)  in  the  respective  rates  of  interest;  or 

Second.  In  case  the  principal  of  the  Bonds  shall 
have  become  due,  by  declaration  or  otherwise,  to 
the  payment  of  the  accrued  interest  thereon  (with 
interest  on  overdue  instalments  thereof  at  the  rates 
specified  in  the  respective  Bonds)  in  the  order  of 
the  maturity  of  such  instalments,  and,  if  any  sur¬ 
plus  remains,  toward  the  payment  of  the  principal 
of  the  Bonds  then  due ;  such  payments  in  every  in¬ 
stance  to  be  made  ratably  to  the  persons  entitled 
thereto,  without  any  discrimination  or  preference, 
except  as  to  the  difference  (if  any)  in  the  respec¬ 
tive  rates  of  interest. 

Upon  the  payment  in  full,  as  above  provided,  of  what¬ 
ever  sum  or  sums  may  have  been  due  for  principal  and/or 
for  interest,  or  payable  for  other  purposes,  and  upon  the 
fulfillment  and  performance  of  all  other  obligations  of 
the  Company  in  respect  of  which  it  was  in  default  under 
this  Agreement,  the  Company  shall  thereafter  be  entitled 
to  receive  the  income  from  the  Trust  Property,  unless  the 
same  shall  have  been  sold  as  in  this  Article  Fifth  pro¬ 
vided,  in  the  same  manner  and  to  the  same  extent  as 
though  no  default  had  occurred. 

Section  6.  Except  as  herein  expressly  provided  to 
the  contrary,  no  remedy  herein  conferred  upon  or  re- 


45 


served  to  the  Trustee  or  to  the  holders  of  the  Bonds  is 
intended  to  be  exclusive  of  any  other  remedy,  but  every 
remedy  herein  provided  shall  be  cumulative,  and  shall  be 
in  addition  to  every  other  remedy  given  hereunder  or  now 
or  hereafter  existing  at  law  or  in  equity,  or  by  statute; 
and  every  power  and  remedy  given  by  this  Agreement  to 
the  Trustee  or  to  holders  of  the  Bonds  may  be  exercised 
from  time  to  time,  and  as  often  as  may  be  deemed  ex¬ 
pedient.  No  delay  or  omission  by  the  Trustee  or  by  any 
holder  of  any  Bond  to  exercise  any  right  or  power  arising 
from  any  default,  shall  impair  any  such  right  or  power, 
or  shall  be  construed  to  be  a  waiver  of  any  such  default 
or  an  acquiescence  therein.  In  case  the  Trustee  shall 
have  proceeded  to  enforce  any  right  under  this  Agreement, 
and  such  proceedings  shall  have  been  discontinued  or 
abandoned  because  of  waiver,  or  for  any  other  reason,  or 
shall  have  been  determined  adversely,  then,  and  in  each 
and  every  such  case,  the  Company  and  the  Trustee  shall 
severally  and  respectively  be  restored  to  their  former 
positions  and  rights  hereunder  in  respect  of  the  Trust 
Property,  and  all  rights,  remedies  and  powers  of  the  Trus¬ 
tee  shall  continue  as  though  no  such  proceedings  had 
been  taken. 

Section  7.  No  holder  of  any  Bond  shall  have  the 
right  to  institute  any  suit,  action  or  proceeding  at  law 
or  in  equity  upon,  or  in  respect  of,  this  Agreement,  or  for 
the  execution  of  any  trust  or  power  hereof,  or  for  any 
other  remedy  under  or  upon  this  Agreement,  unless  such 
holder  shall  previously  have  given  to  the  Trustee  written 
notice  of  an  existing  default;  nor  unless,  also,  such  holder 
or  holders  shall  have  tendered  to  the  Trustee  security 
and  indemnity  satisfactory  to  it  against  all  costs,  ex¬ 
penses  and  liabilities  which  might  be  incurred  in  or  by 
reason  of  such  action,  suit  or  proceeding;  nor  unless, 


46 


also,  the  holders  of  at  least  twenty-five  per  cent,  in  aggre¬ 
gate  principal  amount  of  the  Bonds  then  outstanding 
shall  have  requested  the  Trustee  in  writing,  to  take 
action  in  respect  of  such  default  and  the  Trustee  shall 
have  declined  to  take  such  action  or  shall  have  failed  so 
to  do  within  thirty  days  thereafter;  it  being  understood 
and  intended  that  no  holder  of  any  Bond  shall  have  any 
right  in  any  manner  whatever  to  affect,  disturb  or 
prejudice  the  lien  of  this  Agreement  by  his  action,  or  to 
enforce  any  right  hereunder,  except  in  the  manner  herein 
provided,  and  that  all  proceedings  hereunder  shall  be 
instituted,  and  maintained  in  the  manner  herein  pro¬ 
vided  and  for  the  equal  benefit  of  all  holders  of  outstand¬ 
ing  Bonds. 

ARTICLE  SIXTH. 

Sundry  Provisions. 

Section  1.  Any  demand,  request  or  other  instrument 
required  by  this  Agreement  to  be  signed  or  executed  by  the 
holders  of  any  Bonds  may  be  in  any  number  of  concurrent 
writings  of  similar  tenor,  and  may  be  signed  or  executed 
by  such  holders  in  person,  or  by  attorney  appointed  in 
writing.  Proof  of  the  execution  of  any  such  demand, 
request  or  other  instrument,  or  of  the  writing  appointing 
any  such  attorney,  and  of  the  ownership  by  any  person  of 
any  Bonds,  shall  be  conclusive  in  favor  of  the  Trustee  and 
of  the  Company,  with  regard  to  due  action  taken  by  the 
Trustee  or  by  the  Company,  pursuant  to  such  instrument, 
if  such  proof  be  made  in  the  following  manner : 

The  fact  and  date  of  the  execution  by  any  per¬ 
son  of  any  such  demand,  request  or  other  instru¬ 
ment  or  writing  may  be  proved  by  the  certificate 
of  any  notary  public  or  any  officer  of  any  juris¬ 
diction,  authorized  by  the  laws  thereof  to  take 
acknowledgments  of  deeds  to  be  recorded  in  any 
State  within  the  United  States,  certifying  that  the 


47 


person  signing  such  request  or  other  instrument 
acknowledged  to  him  the  execution  thereof,  or  by 
an  affidavit  of  a  witness  to  such  execution  duly 
sworn  to  before  any  such  notary  public  or  other 
officer. 

The  fact  of  the  holding  of  any  Bonds  which  shall 
not  at  the  time  be  registered  as  to  principal  and 
the  amounts  and  serial  numbers  of  such  Bonds  and 
the  date  of  holding  the  same,  may  be  proved  by  a 
certificate  executed  by  any  trust  company,  bank, 
banker  or  other  depositary  (wherever  situated),  if 
such  certificate  shall  be  deemed  by  the  Trustee  to 
be  satisfactory,  showing  that  at  the  date  therein 
mentioned  the  person  named  in  such  certificate  had 
on  deposit  with,  or  exhibited  to,  such  depositary 
the  Bonds  described  in  such  certificate.  For  all 
purposes  of  this  Agreement  and  of  any  proceeding 
pursuant  hereto  for  the  enforcement  hereof  or 
otherwise,  such  person  shall  be  deemed  to  continue 
to  be  the  holder  of  such  Bonds  until  the  Trustee 
shall  have  received  notice  in  writing  to  the  con¬ 
trary.  The  ownership  of  any  Bonds  registered  as 
to  principal  shall  be  proved  by  the  register  of  such 
Bonds. 

Section  2.  As  to  all  Bonds  registered  as  to  principal, 
the  person  in  whose  name  the  same  shall  be  registered  on 
the  books  of  the  Company  shall  for  all  purposes  of  this 
Agreement  be  deemed  and  regarded  as  the  owner  thereof, 
and  payment  of  or  on  account  of  the  principal  of  any 
such  Bond  registered  as  to  principal  shall  be  made  only 
to  or  upon  the  order  of  such  registered  holder.  Such  pay¬ 
ment  shall  be  valid  and  effectual  to  satisfy  and  discharge 
the  liability  of  the  Company  upon  such  Bonds  to  the  ex¬ 
tent  of  the  sum  or  sums  so  paid. 


48 


The  holder  of  any  Bond  which  shall  not  at  the  time  be 
registered  as  to  principal  and  the  holder  of  any  interest 
coupon  pertaining  to  any  Bond,  whether  such  Bond 
be  registered  as  to  principal  or  not,  shall,  for  all  purposes 
of  this  Agreement,  be  treated  as  the  absolute  owner  of 
such  Bond  or  interest  coupon ;  and  neither  the  Company 
nor  the  Trustee  shall  be  affected  by  any  notice  to  the 
contrary. 

Section  3.  No  recourse  shall  be  had  for  the  payment 
of  either  principal  or  interest  of  any  Bond  or  for 
any  claim  based  thereon  or  otherwise  in  any  manner 
in  respect  thereof  or  in  respect  of  this  Agreement,  or 
against  any  stockholder,  officer  or  director  of  the  Com¬ 
pany,  past,  present  or  future,  or  his  legal  representatives 
or  assigns,  either  directly  or  through  the  Company,  by 
virtue  of  any  statute,  or  by  the  enforcement  of  any  assess¬ 
ment  or  penalty,  or  in  any  manner. 

Section  4.  All  the  covenants,  stipulations  and  agree¬ 
ments  in  this  Agreement  contained,  by  or  on  behalf  of 
the  Company,  are  and  shall  be  for  the  sole  and  exclusive 
benefit  of  the  parties  hereto  and  of  the  respective  holders 
and  owners  of  the  Bonds  and  interest  coupons  hereby 
secured,  and  shall  bind  and  apply  to  the  successors  and 
assigns  of  the  Company,  whether  so  expressed  or  not. 
Whenever,  in  this  Agreement,  either  of  the  parties  hereto 
is  named  or  referred  to,  it  shall  be  deemed  to  include  the 
successor  or  successors  and  assigns  of  such  party,  and  all 
covenants,  promises  and  agreements  in  this  Agreement 
contained  by  or  on  behalf  of  the  Company,  or  by  or  on  be¬ 
half  of  the  Trustee,  shall  bind  and  inure  to  the  benefit  of 
the  respective  successors  and  assigns  of  such  party, 
whether  so  expressed  or  not. 


49 


ARTICLE  SEVENTH. 

Concerning  the  Trustee. 

Section  1.  The  Trustee  accepts  the  trusts  of  this 
Agreement,  and  agrees  to  execute  them  upon  the  terms 
and  conditions  hereof,  including  the  following,  to  all  of 
which  the  parties  hereto  and  the  respective  holders  of  the 
Bonds  agree: 

Any  action  taken  by  the  Trustee  pursuant  to  this 
Agreement,  at  the  request  or  with  the  consent  of  any 
person  who  at  any  time  is  the  owner  of  any  Bond  secured 
hereby,  shall  be  conclusive  and  binding  upon  all  future 
owners  of  such  Bond. 

The  Trustee  shall  not  be  under  any  responsibility  or 
duty  with  respect  to  the  disposition  of  the  Bonds  or  the 
proceeds  thereof,  or  for  the  application  of  any  moneys 
paid  to  the  Company  under  any  of  the  provisions  hereof. 

It  shall  be  no  part  of  the  duty  of  the  Trustee  to  see  to 
the  insurance  of  any  of  the  mortgaged  properties,  or  itself 
to  affect  or  maintain  such  insurance  or  to  receive  any 
policies  of  insurance  or  to  collect  the  proceeds  thereof,  or 
to  see  to  the  payment  of  any  tax  or  assessment  or  other 
governmental  charge  which  may  be  levied  or  assessed 
against  the  Company  or  against  the  Trust  Property,  or 
against  the  owners  of  the  Bonds,  or  to  see  to  the  per¬ 
formance  or  observance  of  any  of  the  covenants  or  agree¬ 
ments  hereof  on  the  part  of  the  Company. 

All  moneys  coming  into  the  hands  of  the  Trustee  may 
be  treated  by  it,  until  such  time  as  it  is  required  to  pay 
out  the  same,  as  a  general  deposit,  and  the  interest  to  be 
paid  thereon  shall  be  at  such  rate  as  the  Trustee  allows 
to  its  general  depositors. 

The  Trustee  shall  be  entitled  to  reasonable  compensa¬ 
tion  for  all  services  rendered  by  it  in  the  execution  of  the 


50 


trusts  hereby  created,  and  such  compensation,  and  that 
of  its  counsel  and  of  such  persons  as  it  may  employ  in  the 
administration  of  the  trusts  hereby  created,  as  well  as 
all  reasonable  expenses  necessarily  incurred  and  actually 
disbursed  hereunder,  the  Company  agrees  to  pay;  and, 
until  paid,  the  Trustee  shall  have  a  lien  upon  the  Trust 
Property  for  such  payment  prior  to  the  lien  of  the  Bonds. 

The  Trustee  shall  not  be  responsible  for  the  recitals 
herein  or  in  the  Bonds,  all  of  which  are  made  by  the 
Company  solely. 

The  Trustee  shall  not  be  under  any  obligation  to  take 
any  action  toward  the  execution  or  enforcement  of  the 
trusts  hereby  created,  which  in  its  opinion  will  be  likely 
to  involve  it  in  expense  or  liability,  unless  one  or  more 
holders  of  Bonds  shall,  as  often  as  required  by  the  Trus¬ 
tee,  furnish  it  security  and  indemnity  satisfactory  to  it 
against  such  expense  or  liability;  nor  shall  the  Trustee 
be  required  to  take  notice  of  any  default  hereunder  unless 
notified  in  writing  of  such  default  by  the  holders  of  at 
least  twenty-five  per  cent,  in  aggregate  principal  amount 
of  the  Bonds  then  outstanding;  nor  to  take  any  action 
in  respect  of  any  such  default  involving  expense  or  lia¬ 
bility  unless  requested  by  an  instrument  in  writing 
signed  by  the  holders  of  not  less  than  twenty -five  per  cent, 
in  aggregate  principal  amount  of  the  Bonds  then  out¬ 
standing  and  tendered  such  security  and  indemnity  as 
aforesaid,  anything  herein  contained  to  the  contrary  not¬ 
withstanding;  but  neither  any  such  notice  or  request,  nor 
this  or  any  other  provision  therefor,  shall  affect  any  dis¬ 
cretion  herein  given  to  the  Trustee  to  determine  whether 
or  not  it  shall  take  action  in  respect  of  such  default,  or 
to  take  action  without  such  request. 

The  Trustee  shall  not  be  answerable  for  the  default 
or  misconduct  of  any  agent  or  attorney  appointed  by  it  in 
pursuance  hereof,  if  such  agent  or  attorney  shall  have 
been  selected  with  reasonable  care. 


51 


The  Trustee  shall  not  be  liable  for  any  error  of  judg¬ 
ment,  nor  for  any  act  done  or  step  taken  or  omitted  by  it 
in  good  faith,  nor  for  any  mistake  of  fact  or  of  law,  nor  for 
anything  which  it  may  do  or  refrain  from  doing  in  con¬ 
nection  herewith,  except  only  for  its  own  wilful  default. 

The  Trustee  shall  be  reimbursed  and  indemnified  by 
the  Company  against  any  liability  or  damage  it  may  sus¬ 
tain  or  incur  in  the  premises,  and  shall  have  a  lien  upon 
the  Trust  Property,  and  the  proceeds  thereof,  pref¬ 
erential  to  the  Bonds,  for  any  such  liability  or  damage. 

The  Trustee  may  advise  with  legal  counsel;  and  any 
action  under  this  Agreement  taken  or  suffered  in  good 
faith  by  the  Trustee  in  accordance  with  the  opinion  of 
counsel,  shall  be  conclusive  on  the  Company  and  on  all 
holders  of  the  Bonds;  and  the  Trustee  shall  be  fully  pro¬ 
tected  in  respect  thereto. 

The  Trustee  shall  be  protected  in  acting  upon  any 
notice,  request,  waiver,  copy  of  resolution,  consent,  cer¬ 
tificate,  note,  affidavit,  indemnity  bond  or  other  paper  or 
document,  believed  by  it  to  be  genuine  and  to  be  signed 
by  the  proper  party  or  parties. 

The  Trustee  shall  not  be  accountable  in  respect  of 
the  validity  of  this  instrument  or  of  the  Bonds  issued 
hereunder,  nor  for  the  sufficiency  of  the  security  provided 
hereby,  and  it  makes  no  representation  in  respect  thereof. 

The  Trustee,  in  its  individual  capacity,  may  acquire 
and  hold  any  Bonds  issued  hereunder,  with  the  same 
rights  and  to  the  same  extent  as  if  it  were  not  such 
Trustee. 

In  case  at  any  time  it  shall  be  necessary  or  proper  for 
the  Trustee  to  make  any  investigation  respecting  any 
facts  preparatory  to  taking  or  not  taking  any  action,  or 
doing  or  not  doing  anything  as  such  Trustee,  the  certifi¬ 
cate  of  the  Company,  under  its  corporate  seal,  attested  by 
the  signature  of  its  President  or  a  Vice-President,  and  the 


U.  01  ILL  LIB. 


52 


affidavit  of  one  or  more  directors  of  the  Company,  other 
than  such  President  or  Vice-President,  shall,  except  as 
in  this  Agreement  otherwise  expressly  provided,  be  con¬ 
clusive  evidence  of  such  fact  to  protect  the  Trustee  in  any 
action  that  it  may  take,  or  refrain  from  taking,  by  reason 
of  the  supposed  existence  or  non-existence  of  such  fact. 

Section  2.  The  Trustee  or  any  successor  may  resign 
as  such  Trustee  by  filing  with  the  Company  an  instru¬ 
ment  in  writing,  resigning  the  trusts  created  hereby,  two 
weeks  (or  such  shorter  time  as  may  be  accepted  by  the 
Company  as  adequate)  before  such  resignation  shall  take 
effect. 

Any  Trustee  may  be  removed  at  any  time  by  an  instru¬ 
ment  in  writing  filed  with  the  Trustee  for  the  time  being- 
under  this  Agreement  and  executed  by  the  holders  of  at 
least  a  majority  in  aggregate  principal  amount  of  the 
Bonds  then  outstanding,  provided  there  be  paid  to  the 
Trustee  so  removed  all  moneys  then  due  to  it  hereunder. 

Section  3.  In  case  at  any  time  the  Trustee  shall  re¬ 
sign  or  shall  be  removed  or  otherwise  shall  become  in¬ 
capable  of  acting,  a  successor  may  be  appointed  by  the 
holders  of  a  majority  in  aggregate  principal  amount  of 
the  Bonds  then  outstanding  by  an  instrument  signed  by 
such  holders  or  their  attorneys  in  fact  duly  authorized, 
an  original  of  which  instrument  shall  be  delivered  to  the 
retiring  Trustee  and  a  duplicate  original  to  the  successor 
Trustee,  so  appointed;  but  until  a  new  Trustee  shall  be 
appointed  as  hereinabove  provided,  the  Company  may, 
by  an  instrument  in  writing,  executed  by  order  of  its 
Board  of  Directors  and  similarly  delivered,  appoint  a 
Trustee  to  fill  such  vacancy.  Any  such  Trustee  so  ap¬ 
pointed  by  the  Company  shall  immediately  be  superseded 
by  a  Trustee  appointed  in  the  manner  above  provided  by 


53 


the  holders  of  a  majority  in  aggregate  principal  amount 
of  the  Bonds. 

Any  Trustee  appointed  under  any  of  the  provisions  of 
this  Article  shall  always  be  a  trust  company  having  an 
office  in  the  Borough  of  Manhattan,  City  and  State  of 
New  York,  and  having  a  capital  and  surplus  aggregating 
at  least  Five  Million  Dollars,  if  there  shall  be  such  a  trust 
company  willing  and  able  to  accept  the  trusts  upon  rea¬ 
sonable  or  customary  terms. 


Section  4.  Any  successor  Trustee  appointed  here¬ 
under  shall  execute  and  deliver  to  the  Company  and  to 
its  predecessor  Trustee  an  instrument  accepting  such  ap¬ 
pointment  hereunder,  and  thereupon  such  successor 
Trustee  shall  be  invested  with  the  authority,  rights, 
powers  and  duties  herein  provided  for  the  Trustee;  and, 
upon  the  resignation  or  removal  of  any  Trustee,  all  the 
estate,  right,  title  and  interest  of  such  Trustee  in  the 
mortgaged  properties  shall  wholly  cease  and  determine; 
but  the  Trustee  so  resigning  or  removed,  shall,  at  the  re¬ 
quest  of  the  Company,  its  successors  or  assigns,  or  of  the 
successor  Trustee  so  appointed,  and  upon  payment  of  its 
charges  and  disbursements  then  unpaid,  execute  and  de¬ 
liver  to  such  successor  all  such  assignments,  conveyances 
and  other  instruments  as  such  successor  may  reasonably 
require,  and  shall  deliver  to  such  successor  in  negotiable 
form  or  accompanied  by  suitable  transfer  powers  all  cash, 
shares  of  stock,  bonds  or  other  securities  then  in  its  posses¬ 
sion  hereunder. 

In  witness  whereof,  the  parties  hereto  have  caused 
this  Agreement  to  be  executed  in  their  corporate  names 
by  their  respective  chairmen  of  the  Board  of  Directors, 
Presidents  or  Vice-Presidents,  and  their  corporate  seals 


54 


to  be  hereto  affixed,  attested  by  their  respective  Secre¬ 
taries  or  Assistant  Secretaries,  as  of  the  day  and  year 
first  above  written. 

Anaconda  Copper  Mining  Company, 
[corporate  By  John  D.  Ryan, 

seal.]  Chairman  of  the  Board  of  Directors. 

Attest : 

A.  H.  Melin, 

Secretary. 

Guaranty  Trust  Company  of  New  York, 
[corporate  By  F.  J.  H.  Sutton, 

seal.]  Vice-President. 

Attest : 

H.  R.  Johnston, 

Assistant  Secretary. 


55 


State  of  New  York,) 

County  of  New  York.) 

On  this  22d  day  of  January,  1919,  before  me 
personally  came  John  D.  Ryan,  to  me  personally  known, 
who,  being  by  me  duly  sworn,  says  that  he  resides  in  the 
Borough  of  Manhattan,  City  and  State  of  New  York;  that 
he  is  the  Chairman  of  the  Board  of  Directors  of  the  Ana¬ 
conda  Copper  Mining  Company,  one  of  the  corporations 
described  in  and  which  executed  the  foregoing  instrument ; 
that  he  knows  the  seal  of  the  said  corporation;  that  the 
seal  affixed  to  the  said  instrument  is  such  corporate  seal ; 
that  it  was  so  affixed  by  authority  of  the  Board  of  Direc¬ 
tors  of  the  said  corporation,  and  that  he  signed  his  name 
thereto  by  like  authority. 

A.  E.  Burke, 

[notarial  Notary  Public,  New  York  County 

seal.]  New  York  County  Clerk’s  No.  356 

New  York  Register’s  No.  10024 
My  Commission  Expires  Mar.  30,  1920. 


State  of  New  York,) 

County  of  New  York.) 

On  this  22d  day  of  January,  1919,  before  me 
personally  came  F.  J.  H.  Sutton,  to  me  personally  known, 
who,  being  by  me  duly  sworn,  says  that  he  resides  in  New 
York  City,  New  York;  that  he  is  a  Vice-President  of  the 
Guaranty  Trust  Company  of  New  York,  one  of  the  cor¬ 
porations  described  in  and  which  executed  the  foregoing 
instrument;  that  he  knows  the  seal  of  the  said  corpora¬ 
tion;  that  the  seal  affixed  to  the  said  instrument  is  such 
corporate  seal;  that  it  was  so  affixed  by  authority  of  the 
Board  of  Directors  of  the  said  corporation,  and  that  he 
signed  his  name  thereto  by  like  authority. 

A.  E.  Burke, 

[notarial  Notary  Public,  New  York  County 

seal.]  New  York  County  Clerk’s  No.  356 

New  York  Register’s  No.  10024 
My  commission  expires  Mar.  30,  1920. 


A2084 


